<PAGE> 1
File No. 33-______________
As filed with the Securities and Exchange Commission on February 22, 1995.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FIRST MISSISSIPPI CORPORATION
(Exact name of issuer as specified in its charter)
MISSISSIPPI 64-0354930
(State of Incorporation) (I.R.S. Employer ID Number)
700 NORTH STREET
JACKSON, MISSISSIPPI 39202
(Address of Principal Executive Offices) (Zip Code)
FIRST MISSISSIPPI CORPORATION 1988
LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
JAMES L. MCARTHUR, SECRETARY
FIRST MISSISSIPPI CORPORATION
P. O. BOX 1249
JACKSON, MISSISSIPPI 39215-1249
(601) 948-7550
(Name, address and telephone number of agent for service)
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Title of Amount Proposed Proposed Maxi- Amount of
Securities to to be Maximum Offering mum Aggregate Registration
be Registered Registered Price Per Share(1) Offering Price Fee
================================================================================================================
<S> <C> <C> <C> <C>
Common Stock 1,000 Issuable upon Not Applicable Not Applicable
par value $1.00 shares(2) conversion
- ----------------------------------------------------------------------------------------------------------------
1994-1 Series 1,000 Issuable upon Not Applicable Not Applicable
Convertible shares(2) conversion
Preferred Stock
- ----------------------------------------------------------------------------------------------------------------
1994-1 Series $ 21,312.50 100% of face $ 21,312.50 $ 7.35*
Convertible amount
Subordinated
Debentures
================================================================================================================
</TABLE>
(1) Estimated solely for calculation of the registration fee pursuant to Rule
457(i).
(2) Subject to anti-dilution increases permitted by Rule 416.
* Minimum fee of $100 has been wire transferred.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The following documents filed with the Commission by First
Mississippi Corporation (the "Company") are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended June 30,
1994; (2) the Company's Quarterly Report on Form 10-Q for the quarters ended
September 30, 1994 and December 31, 1994; (3) the description of the Company's
Common Stock contained in Item 1 of the Company's Registration Statement on
Form 8-A filed on November 19, 1974, as amended by Item 4 of the Company's
Current Report on Form 8-K for the month of November 1975, Part II, Item 4 of
its Quarterly Report on Form 10-Q for the quarter ended September 30, 1981,
Item 2 of the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1986, and Item 5 of the Company's Current Report on Form 8-K, dated
as of February 28, 1989; (4) Item 5 of the Company's Current Report on Form
8-K, dated as of November 14, 1991; and by any other reports filed to update
the Form 8-A, including Quarterly Reports on Form 10-Q describing various
series of the Company's Preferred Stock authorized for issuance under the
Company's 1980 and 1988 Long-Term Incentive Plans (the "1980 Plan," the "1988
Plan" or, collectively, the "Plans") and described in Item 4 below. All
documents filed hereafter by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 prior to the termination of the
offering hereunder shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. Description of Securities
See Item 3 for description of Common Stock (including any
provision of the Company's Articles of Incorporation or Bylaws
having an effect on a change of control of the Registrant).
NOTE: Each series of debentures and Preferred Stock described below,
other than the 1994-1 series of debentures and Preferred Stock,
has been registered under a previously filed Registration
Statement relating to the Company's 1980 or 1988 Long-Term
Incentive Plan, as amended. All existing series of debentures and
all existing series of Preferred Stock created for issuance under
either of such Plans must be described in the Prospectus used in
connection with this Registration Statement, so the following
composite description of all such series is also being used in
this Registration Statement instead of preparing a separate
description covering only the series of debentures and Preferred
Stock being registered hereby.
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<PAGE> 3
1980 Plan Debentures
The Company has created a total of twelve series of debentures for
issuance pursuant to debenture options under the 1980 Plan, which have been
designated as the Company's 1982-A Series Convertible Subordinated Debentures
(the "1982-A Series Debentures"), 1982-B Series Convertible Subordinated
Debentures (the "1982-B Series Debentures"), 1982-C Series Convertible
Subordinated Debentures (the "1982-C Series Debentures"), 1982-D Series
Convertible Subordinated Debentures (the "1982-D Series Debentures"), 1983-A
Series Convertible Subordinated Debentures (the "1983-A Series Debentures"),
1984-A Series Convertible Subordinated Debentures (the "1984-A Series
Debentures"), 1984-B Series Convertible Subordinated Debentures (the "1984-B
Series Debentures"), 1985-A Series Convertible Subordinated Debentures (the
"1985-A Series Debentures"), 1986-A Series Convertible Subordinated Debentures
(the "1986-A Series Debentures"), 1987-A Series Convertible Subordinated
Debentures (the "1987-A Series Debentures"), 1988-A Series Convertible
Subordinated Debentures (the "1988-A Series Debentures"), and the 1989-A Series
Convertible Subordinated Debentures (the "1989-A Series Debentures"). These
twelve debenture series will sometimes be referred to collectively as the "1980
Plan Debentures," and except as otherwise indicated, are subject to the same
terms and conditions. The 1984-A Series (with face values in multiples of
$50), 1985-A Series, 1986-A Series, 1987-A Series, 1988-A Series and 1989-A
Series Debentures have been created for issuance pursuant to regular debenture
options; the other six series have been created for issuance pursuant to
special debenture options and therefore have certain provisions based on the
provisions initially prescribed in the stock options converted into these
special debenture options. The Company has authorized the issuance, pursuant
to the exercise of debenture options, of an aggregate principal amount of
$314,175 of 1982-A Series Debentures, $1,232,200 of 1982-B Series Debentures,
$251,075 of 1982-C Series Debentures, $105,125 of 1982-D Series Debentures,
$653,437.50 of 1983-A Series Debentures, $1,296,750 of 1984-A Series
Debentures, $47,500 of 1984-B Series Debentures, $953,018.75 of 1985-A Series
Debentures, $1,145,625 of 1986-A Series Debentures, $1,400,437.50 of 1987-A
Series Debentures, $2,486,250 of 1988-A Series Debentures and $1,802,500 of
1989-A Series Debentures. The total amount of 1980 Plan Debentures available
for exercise or conversion, or both, as of December 31, 1994 were:
<TABLE>
<CAPTION>
Amount Exercised
Debenture Series Amount Outstanding but not Converted
- ---------------- ------------------ -----------------
<S> <C> <C>
1985-A $ 260,625.00 $ 34,750.00
1986-A 235,000.00 0.00
1987-A 721,875.00 28,875.00
1988-A 1,593,750.00 430,312.50
1989-A 857,500.00 542,500.00
</TABLE>
The 1984-A Series Debentures are governed by an Indenture dated as of August
17, 1984 (the "1984 Indenture"). The 1985-A Series Debentures are governed by
an Indenture dated as of August 13, 1985 (the "1985 Indenture"). The 1986-A
Series Debentures are governed by an Indenture dated as of August 11, 1986 (the
"1986 Indenture"). The 1982-A, 1982-B, 1982-C, 1982-D, 1983-A, 1984-B and
1987-A Series Debentures are governed by an Indenture dated as of August 10,
1987 (the "1987 Indenture"). The 1988-A Series Debentures are governed by an
Indenture dated as of August 30, 1988 (the "1988 Indenture (1980 Plan)"). The
1989-A Series Debentures are governed by an Indenture dated
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<PAGE> 4
as of August 22, 1989 (the "1989 Indenture (1980 Plan)"). The 1984, 1985,
1986, 1987, 1988 (1980 Plan) and 1989 (1980 Plan) Indentures were amended by
Supplemental Indentures dated November 14, 1991. The 1984, 1985, 1986, 1987,
1988 (1980 Plan) and 1989 (1980 Plan) Indentures are all between the Company
and Deposit Guaranty National Bank, as Trustee (the "Trustee"), One Deposit
Guaranty Plaza, Jackson, Mississippi 39201. The Trustee also serves as a
registrar for the Company's Common Stock and engages in commercial banking
transactions with the Company in the ordinary course of business.
The twelve series of debentures created for issuance pursuant to
debenture options under the 1980 Plan have the following maturity dates:
<TABLE>
<CAPTION>
Debenture Series Maturity Date
---------------- -------------
<S> <C>
1982-A August 8, 1992
1982-B August 12, 1992
1982-C September 2, 1992
1982-D August 31, 1992
1983-A August 7, 1993
1984-A August 16, 1994
1984-B August 16, 1994
1985-A August 12, 1995
1986-A August 10, 1996
1987-A August 9, 1997
1988-A August 29, 1998
1989-A August 21, 1999
</TABLE>
In certain circumstances described below, the 1980 Plan Debentures
may be redeemed prior to their maturity date. The twelve debenture series will
be subordinated generally to the Company's other indebtedness, except that they
will rank equally with each other and any other series of debentures created
for issuance under the Plans. Interest on the 1980 Plan Debentures will be
payable semi-annually on January 1 and July 1 of each year.
Subject to the conditions described herein, at any time more than
six months after the date of grant of the applicable 1980 Plan Debenture Option
and prior to the redemption or payment thereof, each 1980 Plan Debenture will
be convertible into fully paid and non-assessable shares of the Company's
Preferred Stock at a conversion price as set forth in the following table:
<TABLE>
<CAPTION>
Convertible into Conversion Price
Debenture Series Preferred Stock Per Share
---------------- --------------- ----------------
<S> <C> <C>
1982-A 1982-A Series $ 7.375
1982-B 1982-B Series 6.3125
1982-C 1982-C Series 7.5625
</TABLE>
-3-
<PAGE> 5
<TABLE>
<CAPTION>
Convertible into Conversion Price
Debenture Series Preferred Stock Per Share
---------------- --------------- ----------------
<S> <C> <C>
1982-D 1982-D Series 7.25
1983-A 1983-A Series 12.8125
1984-A 1984-A Series 9.50
1984-B 1984-B Series 9.50
1985-A 1985-A Series 8.6875
1986-A 1986-A Series 5.875
1987-A 1987-A Series 14.4375
1988-A 1988-A Series 15.9375
1989-A 1989-A Series 17.50
</TABLE>
An amendment to the 1980 Plan, which was approved by the Company's stockholders
in June 1990, authorizes the Board of Directors to determine the appropriate
adjustments, if any, in the conversion prices specified above in the event of
any reclassification, recapitalization, merger, consolidation, reorganization,
issuance of warrants, rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, including, without
limitation, a distribution of the stock of a subsidiary, combination or
exchange of shares, repurchase of shares, or any other change of the Company's
corporate structure, which in the judgment of the Board of Directors,
materially affects the value of the Company's shares. Any such adjustments to
the conversion prices would be subject to appropriate amendments to the
Indentures under which the Debentures have been issued, and, in order to effect
an appropriate adjustment, to the authorization of additional shares of Series
Stock (defined below) for issuance upon conversion of the Debentures. Each
share of the Preferred Stock into which the 1980 Plan Debentures are
convertible as described above will be immediately convertible into one share
of Common Stock, subject to adjustment in certain events. See "Description of
Convertible Preferred Stock."
1988 Plan Debentures
The nine series of debentures created for issuance pursuant to
debenture options under the 1988 Plan have been designated as the Company's
1988-1 Series Convertible Subordinated Debentures (the "1988-1 Series
Debentures"), the Company's 1989-1 Series Convertible Subordinated Debentures
(the "1989-1 Series Debentures"), the Company's 1989-2 Series Convertible
Subordinated Debentures (the "1989-2 Series Debentures"), the Company's 1990-1
Series Convertible Subordinated Debentures (the "1990-1 Series Debentures"),
the Company's 1990-2 Series Convertible Subordinated Debentures (the "1990-2
Series Debentures"), the Company's 1991-1 Series Convertible Subordinated
Debentures (the "1991- 1 Series Debentures"), the Company's 1991-2 Series
Convertible Subordinated Debentures (the "1991-2 Series Debentures"), the
Company's 1992-1 Series Convertible Subordinated Debentures (the "1992-1 Series
Debentures") and the Company's 1994- 1 Series Convertible Subordinated
Debentures (the "1994-1 Series Debentures"). The 1988-1 Series Debentures, the
1989-1 Series Debentures, the 1989-2 Series Debentures, the 1990-1 Series
Debentures, the 1990-2 Series Debentures, the 1991-1 Series Debentures, the
1991-2 Series Debentures, the 1992-1 Series Debentures and the 1994-1 Series
Debentures are hereinafter referred to collectively as the "1988 Plan
Debentures." The Company has authorized the issuance, pursuant to the exercise
of debenture options,
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<PAGE> 6
of an aggregate principal amount of $177,375 of 1988-1 Series Debentures,
$787,500 of 1989-1 Series Debentures, $151,937.50 of 1989-2 Series Debentures,
$1,518,000 of 1990-1 Series Debentures, $103,125 of 1990-2 Series Debentures,
$1,520,937.50 of 1991-1 Series Debentures, $102,437.50 of 1991-2 Series
Debentures, $85,937.50 of 1992-1 Series Debentures, and $21,312.50 of 1994-1
Series Debentures.
As of December 31, 1994, the total amount of 1988 Plan Debentures
available for exercise or conversion, or both, were as follows:
<TABLE>
<CAPTION>
Amount Amount Exercised
Debenture Series Outstanding but not Converted
- ---------------- ----------- ------------------
<S> <C> <C>
1988-1 $ 161,250.00 $ 16,125.00
1989-1 787,500.00 0.00
1989-2 138,125.00 13,812.50
1990-1 836,000.00 242,000.00
1990-2 93,750.00 9,375.00
1991-1 755,562.50 122,656.25
1991-2 93,125.00 9,312.50
1992-1 78,125.00 7,812.50
1994-1 21,312.50 0.00
</TABLE>
The 1988-1 Series Debentures are governed by an Indenture dated as
of November 29, 1988 (the "1988 Indenture (1988 Plan)"), the 1989-1 Series
Debentures are governed by an Indenture dated as of August 22, 1989 (the
"1989-1 Indenture (1988 Plan)"), the 1989-2 Series Debentures are governed by
an Indenture dated as of November 10, 1989 (the "1989-2 Indenture (1988
Plan)"), the 1990-1 Series Debentures are governed by an Indenture dated as of
August 27, 1990 (the "1990-1 Indenture (1988 Plan)"), the 1990-2 Series
Debentures are governed by an Indenture dated as of November 9, 1990 (the
"1990-2 Indenture (1988 Plan)"), the 1991-1 Series Debentures are governed by
an Indenture dated as of August 27, 1991 (the "1991-1 Indenture (1988 Plan)"),
the 1991-2 Series Debentures are governed by an Indenture dated as of November
15, 1991 (the "1991-2 Indenture (1988 Plan)"), the 1992-1 Series Debentures are
governed by an Indenture dated as of November 13, 1992, (the "1992-1 Indenture
(1988 Plan)"), and the 1994-1 Series Debentures are governed by an Indenture
dated as of November 14, 1994, (the "1994-1 Indenture (1988 Plan)"), all
between the Company and Deposit Guaranty National Bank, as Trustee (the
"Trustee"), One Deposit Guaranty Plaza, Jackson, Mississippi 39201. In
addition, the Trustee serves as a registrar for the Company's Common Stock and
engages in commercial banking transactions with the Company in the ordinary
course of business. The 1988-1 Indenture, 1989-1 Indenture, 1989-2 Indenture,
1990-1 Indenture, 1990-2 Indenture and 1991-1 Indenture were amended by
Supplemental Indentures dated November 14, 1991.
The 1988-1 Series Debentures, the 1989-1 Series Debentures, the
1989-2 Series Debentures, the 1990-1 Series Debentures, the 1990-2 Series
Debentures, the 1991-1 Series Debentures, the 1991-2 Series Debentures, the
1992-1 Series Debentures and the 1994-1 Series Debentures will mature on
November 28, 1998, August 21, 1999, November 9, 1999, August 26, 2000, November
8, 2000, August 26, 2001, November 14, 2001, November 12, 2002, and November
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<PAGE> 7
13, 2004, respectively. In certain circumstances described below, the 1988
Plan Debentures may be redeemed prior to their due date. The 1988-1, 1989-1,
1989-2, 1990-1, 1990-2, 1991-1, 1991-2, 1992-1 and 1994-1 Series Debentures
will be subordinated generally to the Company's other indebtedness, except that
they will rank equally with each other and any other series of debentures
created for issuance under the 1988 Plan and all other series of debentures
created for issuance under the 1980 Plan. Interest on the 1988 Plan Debentures
will be payable semiannually on January 1 and July 1 of each year.
Subject to the conditions described herein, at any time more than
six months after the date of grant of the applicable 1988 Plan Debenture Option
and prior to the redemption or payment thereof, the 1988-1 Series Debentures
will be convertible at the Conversion Price of $16.125 per share into fully
paid and non-assessable 1988-1 Series Convertible Preferred Stock, the 1989-1
Series Debentures will be convertible at the Conversion Price of $17.50 per
share into fully paid and non-assessable 1989-1 Series Convertible Preferred
Stock, the 1989-2 Series Debentures will be convertible at the Conversion Price
of $13.8125 per share into fully paid and non-assessable 1989-2 Series
Convertible Preferred Stock, the 1990-1 Series Debentures will be convertible
at the Conversion Price of $11.00 per share into fully paid and non- assessable
1990-1 Series Convertible Preferred Stock, the 1990-2 Series Debentures will be
convertible at the Conversion Price of $9.3750 per share into fully paid and
non-assessable 1990-2 Series Convertible Preferred Stock, the 1991-1 Series
Debentures will be convertible at the Conversion Price of $9.8125 per share
into fully paid and non-assessable 1991-1 Series Convertible Preferred Stock,
the 1991-2 Series Debentures will be convertible at the Conversion Price of
$9.3125 per share into fully paid and non-assessable 1991-2 Series Convertible
Preferred Stock, the 1992-1 Series Debentures will be convertible at the
Conversion Price of $7.8125 per share into fully paid and non-assessable 1992-1
Series Convertible Preferred Stock and the 1994-1 Series Debentures will be
convertible at the conversion price of $21.3125 per share into fully paid and
non-assessable 1994-1 Series Convertible Preferred Stock. An amendment to the
1988 Plan, which was approved by the Company's stockholders in June 1990,
authorizes the Board of Directors to determine the appropriate adjustments, if
any, in the conversion prices specified above in the event of any
reclassification, recapitalization, merger, consolidation, reorganization,
issuance of warrants, rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, including, without
limitation, a distribution of the stock of a subsidiary, combination or
exchange of shares, repurchase of shares, or any other change of the Company's
corporate structure, which in the judgment of the Board of Directors,
materially affects the value of the Company's shares. Any such adjustments to
the conversion prices would be subject to appropriate amendments to the
Indentures under which the Debentures have been issued, and, in order to effect
an appropriate adjustment, to the authorization of additional shares of Series
Stock for issuance upon conversion of the Debentures. Each share of the
Preferred Stock will be convertible immediately into one share of Common Stock,
subject to adjustment in certain events. See "Description of Convertible
Preferred Stock."
Provisions Applicable to Both the 1980 Plan Debentures
and the 1988 Plan Debentures
The 1980 Plan Debentures and the 1988 Plan Debentures are
hereinafter referred to collectively as the "Debentures." The following
paragraphs discuss provisions applicable to Debentures issued under either
Plan. The Debentures will bear interest at a floating rate of 1% less than the
rate
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<PAGE> 8
publicly announced as its prime rate by Deposit Guaranty National Bank in
Jackson, Mississippi, but not more than the maximum legal rate permitted under
the law. Mississippi usury law permits interest at 15% on Debentures with a
principal amount exceeding $2,500 and 10% on Debentures in smaller amounts.
Also, a provision of the Mississippi law permits interest on Debentures in any
principal amounts at 5% above the Federal Reserve Bank's discount rate (4.75%
at December 30, 1994). There is no usury limit on Debentures issued between
July 1, 1986 and June 30, 1987 with a principal amount exceeding $125,000.
There is no usury limit on Debentures issued between July 1, 1987 and June 30,
1988 with a principal amount exceeding $75,000. There is no usury limit on
Debentures issued from and after July 1, 1988 with a principal amount exceeding
$25,000. The Company expects that the formula interest rate of the Debentures
will remain in compliance with the applicable usury rate, particularly in the
case of Debentures in amounts exceeding $2,500, because of the usury ceilings
applicable to Deposit Guaranty National Bank in establishing its prime rate.
The Company also believes that there is a sound legal basis for not treating
the right to convert the Debentures into Common Stock as constituting
additional interest for purposes of the Mississippi usury law. Accordingly,
the Company intends to treat the conversion right as not being interest subject
to the Mississippi usury law.
Amendments to the 1980 and 1988 Plans approved by the stockholders
in November, 1991 changed the six-month holding period before a debenture can
be converted into Preferred Stock so that such holding period now begins on the
date a debenture option is granted, rather than on the date a debenture is
purchased upon exercise of a debenture option. The Plans were further amended
by the Board of Directors to provide that administrative responsibilities
relating to the Plans be handled by a committee composed of outside directors.
Furthermore, the Company entered into Supplemental Indentures with Deposit
Guaranty National Bank to reflect the change in the debenture holding period
and to require that Preferred Stock issuable upon conversion of a debenture
will not be transferable except in certain situations. These amendments and
resulting Supplemental Indentures reflect the amended rules, effective May 1,
1991, promulgated by the SEC under Section 16 of the Securities Exchange Act of
1934.
A participant generally may not sell, assign, transfer, pledge or
otherwise hypothecate a Debenture except by will or intestate succession. With
the Company's consent, however, participants may pledge Debentures as security
for loans which will provide all or a part of the financing necessary to
purchase the Debentures. If a participant makes a permitted pledge of a
Debenture, the conversion privilege will not be exercisable during such time as
the Debenture is pledged. Upon notice from the participant and the lender to
which the Debenture was pledged that the Debenture has been released from the
pledge, the conversion privilege will again be exercisable. If a participant
sells, assigns, transfers, pledges or otherwise hypothecates a Debenture in a
manner not permitted under the Indenture or if a party forecloses on a
permitted pledge, the conversion right will permanently cease to exist. Should
the conversion right of a Debenture so terminate, the Company has the option,
but not the obligation, to prepay that Debenture.
Debentures may be converted in whole or in part but no partial
conversion will be permitted if, following conversion, the remaining principal
amount of the Debenture would be less than $1,000. Shares of Series Stock will
be issued upon conversion of Debentures in whole shares only. If more than one
Debenture of the same series is surrendered for conversion at one time by the
same holder, the number of whole shares issuable upon conversion will be
computed upon the basis of the
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<PAGE> 9
aggregate principal amount of such Debentures (or portions thereof specified
for conversion) so surrendered. Any fractional interest in a share otherwise
deliverable upon conversion will be settled by payment in the form of a check
or cash equal to the product obtained by multiplying the applicable Conversion
Price per share times such fractional interest.
The Company may redeem the entire series of the 1984-A Series
Debentures or all or any part of the 1982-A, 1982-B, 1982-C, 1982-D, 1983-A,
1984-B, 1985-A, 1986-A, 1987-A, 1988-A, 1989-A, 1989-1, 1990-1, 1991-1 or
1992-1 Series Debentures on any January 1 or July 1 upon mailing a notice of
redemption not less than 12 nor more than 18 months prior to the date fixed for
such redemption to the holders of the Debentures to be redeemed at their last
registered addresses. Except as provided below, if only a part of the 1982-A,
1982-B, 1982-C, 1982-D, 1983-A, 1984-B, 1985-A, 1986-A, 1987-A, 1988-A, 1989-A,
1989-1, 1990-1, 1991-1 or 1992-1 Series Debentures is to be redeemed, the
Company will specify the amount to be redeemed, and the Trustee will select the
particular Debentures to be redeemed, using a method the Trustee deems fair and
appropriate, which may provide for the selection for redemption of portions of
the principal amount of such Debentures. If a holder of a 1982-A, 1982-B,
1982-C, 1982-D, 1983-A, 1984-B, 1985-A, 1986-A, 1987-A, 1988-A, 1989-A, 1989-1,
1990-1, 1991-1 or 1992-1 Series Debenture is not employed by an Eligible
Employer, the Company may designate for redemption any of such series of
Debentures owned by such person, regardless of whether the Company redeems any
other of such series of Debentures at the same time. If the Company calls for
redemption the 1982-A, 1982- B, 1982-C, 1982-D, 1983-A, 1984-B, 1985-A, 1986-A,
1987-A, 1988-A, 1989-A, 1989-1, 1990-1, 1991-1 or 1992-1 Series Debentures
issued pursuant to the 1988 Plan, the Company may also redeem all of the
1988-1, 1989-2, 1990-2, 1991-2, 1992-1 and 1994-1 Series Debentures held by
Outside Directors on any January 1 or July 1 upon mailing a notice of
redemption not less than 12 nor more than 18 months prior to the date fixed for
such redemption to the holders of the 1988 Plan Debentures to be redeemed at
their last registered addresses. Each Debenture is redeemable for its
principal amount together with accrued interest to the date fixed for
redemption. Purchasers may convert their Debentures at any time prior to the
close of business on the redemption date, subject to the limitations on
conversion privileges described above. A holder may redeem a Debenture at its
principal amount plus accrued interest on any January 1 or July 1 more than one
year after issuance of the Debenture.
In the event that the Company enters into certain merger
transactions, becomes a party to a consolidation, or transfers all or
substantially all of its assets to another company, a supplemental Indenture
will be executed to provide that the holder of each Debenture then outstanding
may convert such Debenture into the kind and amount of shares of stock, cash or
property receivable upon the merger, consolidation, or transfer by a holder of
the number of shares of the applicable series of the Company's Convertible
Preferred Stock issuable upon conversion of such Debenture if such shares of
Preferred Stock had been outstanding immediately prior to such merger,
consolidation or transfer.
Each Indenture under the 1988 Plan and under the 1980 Plan may be
amended to modify the rights of holders of the respective series of Debentures
covered thereby or otherwise modify the terms of such Indenture with the
consent of the Company, the Trustee and the holders of not less than 66 2/3% in
aggregate principal amount of the respective series of Debentures covered
thereby, except that the maturity date, the rate and time of payment for
interest, the conversion rights and certain other specified terms may not be
modified without the consent of all affected holders of the respective series
of Debentures covered thereby.
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<PAGE> 10
Each Indenture defines an "Event of Default" as: (a) any default
in the payment of interest which continues for 30 days after the due date; (b)
any default in the payment of principal when due on the Debentures covered
thereby; (c) failure by the Company to observe or perform any of its other
covenants and agreements in the Debentures covered thereby or in such Indenture
which continues for 60 days after specific written notice of such failure has
been given to the Company by the Trustee or to the Company and the Trustee by
holders of at least 25% in principal amount of the Debentures covered thereby;
(d) certain events of default that cause other indebtedness of the Company to
be accelerated and which are not cured or otherwise remedied within specified
times; and (e) certain events of bankruptcy of the Company. Upon the happening
and during the continuance of an Event of Default, the Trustee or the holders
of at least 25% in aggregate principal amount of the Debentures covered thereby
may declare the principal and accrued interest on all Debentures covered
thereby to be due and payable immediately. The holders of a majority in
aggregate principal amount of the outstanding Debentures of the series so
affected will have the right to direct the time, method and place of conducting
any proceeding or any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, but the Trustee, subject to its obligation
to exercise such of the rights and powers vested in it by each Indenture and to
use the same degree of care and skill in their exercise or use as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs, may decline to follow any such direction if the Trustee in good faith
determines that the proceedings so directed would involve it in a personal
liability or be in conflict with any law or provision of such Indenture. The
Company is required by each Indenture to deliver annually to the Trustee a
certificate from appropriate officers certifying that, to the best of their
knowledge, the Company has satisfied all of its obligations under such
Indenture during the preceding fiscal year.
In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization, or other similar proceedings in
connection therewith, relative to the Company or to its creditors, as such, or
to its property, and in the event of any proceedings for voluntary liquidation,
dissolution, or other winding up of the Company, whether or not involving
insolvency or bankruptcy, or in the event that any Debenture is declared due
and payable before its expressed maturity for any reason, then the holders of
Senior Indebtedness (as defined below) then outstanding shall be entitled to
receive payment in full of all such Senior Indebtedness before the holders of
the Debentures are entitled to receive any payment on account of principal or
interest upon the Debentures.
No payment of principal or interest will be made on the Debentures
during any period that any Senior Indebtedness has matured and has not been
paid in full, refunded or replaced by new indebtedness.
Senior Indebtedness is defined in each Indenture as the principal
and unpaid interest on (a) indebtedness for money borrowed (other than the
Debentures) for the payment of which the Company is responsible or liable,
whether outstanding on the date of execution of such Indenture or thereafter
created, incurred, assumed, or guaranteed, unless in the instrument creating or
evidencing the same or pursuant to which the same is created provides that such
indebtedness is not superior in right of payment to the Debentures, and (b)
renewals, extensions, and deferrals of any such indebtedness. The Indentures
do not contain any limitations on the amount of Senior Indebtedness which may
be hereafter incurred by the Company. At June 30, 1994, the Company had
outstanding
-9-
<PAGE> 11
or guaranteed approximately $103,480,000 of indebtedness which would constitute
Senior Indebtedness under the Indentures.
By reason of such subordination, in the event of the Company's
insolvency, certain general creditors of the Company may recover more ratably
than holders of the Debentures.
DESCRIPTION OF CONVERTIBLE PREFERRED STOCK
The Company is authorized to issue up to 20,000,000 shares of
Preferred Stock in one or more series (the "Preferred Stock"), and the Board is
authorized to determine the form, class, series and amounts in which the
Preferred Stock shall be issued; the price or prices (not less than par) at
which such stock shall be sold; the dividend rights, conversion rates,
conversion prices, par value, voting privileges, redemption prices, maturity
dates, and any other terms and conditions relative to the issuance of the
Preferred Stock. Pursuant to this authority, the Board has established the
1982-A, 1982-B, 1982-C, 1982-D, 1983-A, 1984-A, 1984-B, 1985-A, 1986-A, 1987-A,
1988-A, 1988-1, 1989-A, 1989-1, 1989-2, 1990-1, 1990-2, 1991-1, 1991-2, 1992-1
and 1994-1 Series Convertible Preferred Stock for issuance in connection with
the Plans and has authorized the issuance of such Preferred Stock as follows:
up to 42,600 shares of the 1982-A Series, 195,200 shares of the 1982-B Series,
33,200 shares of the 1982-C Series, 14,500 shares of the 1982-D Series, 51,000
shares of the 1983-A Series, 136,500 shares of the 1984-A Series, 5,000 shares
of the 1984-B Series, 109,700 shares of the 1985-A Series, 195,000 shares of
the 1986-A Series, 97,000 shares of the 1987-A Series, 156,000 shares of the
1988-A Series, 11,000 shares of the 1988-1 Series, 103,000 shares of the 1989-A
Series, 45,000 shares of the 1989-1 Series, 11,000 shares of the 1989-2 Series,
138,000 shares of the 1990-1 Series, 11,000 shares of the 1990-2 Series,
155,000 shares of the 1991-1 Series, 11,000 shares of the 1991-2 Series, 11,000
shares of the 1992-1 Series and 1,000 shares of the 1994-1 Series upon
conversion of, respectively, the 1982-A, 1982-B, 1982-C, 1982-D, 1983-A,
1984-A, 1984-B, 1985-A, 1986-A, 1987-A, 1988-A, 1988-1, 1989-A, 1989-1, 1989-2,
1990-1, 1990-2, 1991-1, 1991-2, 1992-1 and 1994- 1 Series Debentures.
The 1982-A, 1982-B, 1982-C, 1982-D, 1983-A, 1984-A, 1984-B,
1985-A, 1986-A, 1987-A, 1988-A, 1988-1, 1989-A, 1989-1, 1989-2, 1990-1, 1990-2,
1991-1, 1991-2, 1992-1 Series and 1994-1 Series Convertible Preferred Stock
(sometimes referred to collectively as the "Series Stock") each has a par value
of $1.00 per share and is entitled to a quarterly non-cumulative preferential
dividend of $.05 per share, payable quarterly. Each share of Series Stock will
be convertible immediately into one share of the Company's Common Stock,
subject to adjustment in certain events. Amendments to the Plans adopted by
the Company's stockholders in June 1990 authorized the Board of Directors to
determine the appropriate adjustments, if any, to the number of shares of the
Company's Common Stock issuable upon conversion of the Series Stock in the
event of a reclassification, recapitalization, merger, consolidation,
reorganization, issuance of warrants, rights or debentures, stock dividend,
stock split or reverse stock split, cash dividend, property dividend,
including, without limitation, a distribution of the stock of a subsidiary,
combination or exchange of shares, repurchase of shares, or any other change of
the Company's corporate structure, which, in the judgment of the Board of
Directors materially affects the value of the Company's shares subsequent to
the grant of a regular debenture option or subsequent to the conversion of a
stock option into a special debenture option.
-10-
<PAGE> 12
The Company will not issue fractional shares of Common Stock upon
conversion of Series Stock. In lieu of such fractions, the Company will pay to
the holder of Series Stock requesting conversion an amount in cash equal to the
market value of such fraction at the time of such conversion, as determined by
the Board.
Any or all of the Series Stock outstanding at any time may be
redeemed at the option of the Company in whole or in part at any time upon not
less than 20 nor more than 60 days notice to the record holders at their last
addresses as shown in the stock transfer records of the Company. The
conversion right with respect to any shares called for redemption will be lost
unless exercised no later than the day fixed for redemption. The redemption
price per share (the "Redemption Price") for Series Stock will be as follows
(plus in each case accrued and unpaid dividends per share on the respective
series of stock to the date of redemption):
<TABLE>
<CAPTION>
Redemption
Series Stock Price Per Share
------------ ---------------
<S> <C>
1982-A $ 7.375
1982-B 6.3125
1982-C 7.5625
1982-D 7.25
1983-A 12.8125
1984-A 9.50
1984-B 9.50
1985-A 8.6875
1986-A 5.875
1987-A 14.4375
1988-A 15.9375
1988-1 16.125
1989-A 17.50
1989-1 17.50
1989-2 13.8125
1990-1 11.00
1990-2 9.3750
1991-1 9.8125
1991-2 9.3125
1992-1 7.8125
1994-1 21.3125
</TABLE>
Under the Mississippi Business Corporation Act, no redemption could be made if
the Company were insolvent or would be rendered insolvent by such redemption or
if such redemption would reduce the Company's net assets below the aggregate
amount payable to holders of shares having prior or equal rights to the
Company's assets upon involuntary dissolution.
Upon any voluntary or involuntary liquidation or dissolution of
the Company, the holders of the Series Stock will be entitled to a liquidation
preference equal to the Redemption Price for the
-11-
<PAGE> 13
appropriate series as set forth above, plus any declared but unpaid dividends
on the respective series of stock, before any distribution of assets may be
made to the holders of Common Stock or other shares junior to the Series Stock.
After the holders of the Series Stock have received such amount, they may not
participate in any remaining assets and surplus funds of the Company. If the
amounts which holders of the Series Stock and any other series of Preferred
Stock ranking equally as to distribution of assets are entitled to receive in
any voluntary or involuntary liquidation or dissolution are not paid in full,
the shares of Series Stock and such other series of Preferred Stock will share
ratably in any distribution of assets in accordance with the amounts which
would be payable on such distribution if all amounts to which the holders of
each such series are entitled are paid in full.
Additional series of Preferred Stock may be created and shares
thereof may be issued by the Company without any approval or action by the
holders of the Series Stock being necessary, and such additional series of
stock may rank equally with the Series Stock as to distribution of the
Company's assets in the event of liquidation or dissolution.
The holders of shares of Series Stock will not be entitled to vote
except in certain circumstances as provided by the Mississippi Business
Corporation Act. Holders of Series Stock do not have preemptive rights.
ITEM 5. Interests of Named Experts and Counsel
Legal matters, other than those relating to tax consequences, in
connection with the securities covered by this Prospectus have been passed upon
by J. Steve Chustz, General Counsel of the Company. Mr. Chustz also serves as
General Counsel for various subsidiaries of the Company. As of January 30,
1995, Mr. Chustz beneficially owned 1,227 shares of the Company's Common Stock
and 23,500 shares of the Company's Common Stock through the right to exercise
Non- Qualified Stock Options.
The consolidated financial statements and financial statement
schedules of the Company and subsidiaries as of June 30, 1994 and 1993 and for
each of the years in the three-year period ended June 30, 1994, which are
incorporated herein by reference, have been incorporated herein in reliance
upon the reports, also incorporated herein by reference, of KPMG Peat Marwick
LLP, independent certified public accountants, and upon the authority of said
firm as experts in accounting and auditing. To the extent that KPMG Peat
Marwick LLP audits and reports on financial statements of the Company and
subsidiaries issued at future dates, and consents to the use of their reports
thereon, such financial statements also will be incorporated herein by
reference in reliance upon their reports and said authority.
ITEM 6. Indemnification of Directors and Officers
As permitted by Mississippi law, the stockholders of the Company,
at the Annual Meeting of Stockholders on November 7, 1985, adopted a resolution
providing for indemnification of officers, directors and employees. The 1985
resolution, which replaced a similar resolution adopted in 1970, generally
clarifies and broadens the circumstances under which indemnity is provided by
the
-12-
<PAGE> 14
Company, and extends indemnification beyond directors and officers, to
employees. It specifies standards of conduct required to be met to qualify for
indemnity and establishes procedures for determining whether these standards
are met. These standards require that the person to be indemnified either:
(a) be wholly successful, on the merits or otherwise, in any action or
proceeding against such person or (b) otherwise establish that such person
acted in good faith and in a manner such person reasonably believed to be in,
or not opposed to, the best interests of the Company, and in the case of any
criminal action or proceeding, had no reasonable cause to believe that the
conduct was unlawful. Whether these standards are met will be determined by
those directors or shareholders not involved in the matter at issue or by
special legal counsel selected by the directors. In the case of any action or
suit by or in the right of the Company, any person finally adjudged liable for
gross negligence or willful misconduct in performing duties for the Company
will not be entitled to indemnification unless a court determines that
indemnification is proper under the circumstances. Advancement of expenses
will be allowed upon receipt of an undertaking to repay should it ultimately be
determined that an individual is not entitled to indemnity.
The Company maintains officers and directors liability insurance
against certain claims arising out of such persons' services to the Company.
The Company has entered into Indemnification Agreements with certain of its
officers and directors. These Indemnification Agreements provide for
indemnification of such officers or directors in the circumstances and subject
to the conditions set forth in the Company's 1985 resolution. The effect of
the Indemnification Agreements is to add to the indemnification rights granted
by the 1985 resolution as currently in effect a contractual right to such
indemnification which cannot be terminated or altered by amendment of the 1985
resolution.
ITEM 7. Exemption from Registration Claimed
Not applicable.
ITEM 8. Exhibits
4.1 Articles IV, VIII, IX and X of the Registrant's Articles of
Incorporation, as amended, are included as part of Exhibit 3(a) to
the Registrant's Annual Report on Form 10-K for the year ended
June 30, 1992, as amended by the Registrant's Form 8 filed with
the Securities and Exchange Commission on October 21, 1992, and
are incorporated herein by reference.
4.2 The Statements of Resolutions establishing the Registrant's 1994-1
Series Convertible Preferred Stock.
4.3 Articles II, V and VI of the Registrant's Bylaws are included in
Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for
the fiscal year ended June 30, 1991, and are incorporated herein
by reference.
4.4 Indenture, dated as of November 14, 1994, between the Registrant
and Deposit Guaranty National Bank, as Trustee, relating to the
Registrant's 1994-1 Series Convertible Subordinated Debentures,
including the Form of such Debentures.
-13-
<PAGE> 15
4.5 Amended and Restated Rights Agreement between First Mississippi
Corporation and Ameritrust Company National Association was filed
as Exhibit 1 to the Registrant's Current Report on Form 8-K, dated
February 28, 1989, and is incorporated herein by reference.
5.1 Opinion of J. Steve Chustz as to legality of securities being
registered.
24.1 Consent of J. Steve Chustz is contained within the opinion of
counsel filed as Exhibit 5.1.
24.2 Consent of KPMG Peat Marwick LLP.
25 Statement of Eligibility of Trustee (see Statement on Form T-1
filed concurrently with this Registration Statement).
ITEM 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or
Form F3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
-14-
<PAGE> 16
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
-15-
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jackson, State of Mississippi, on February 20,
1995.
FIRST MISSISSIPPI CORPORATION
BY: /s/ J. Kelley Williams
J. Kelley Williams,
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ J. Kelley Williams Chairman of the Board February 20, 1995
- ---------------------- of Directors, President,
J. Kelley Williams Chief Executive Officer
and Director
/s/ R. Michael Summerford Vice President and Chief February 20, 1995
- ------------------------- Financial Officer
R. Michael Summerford (Principal Financial
Officer)
/s/ Troy B. Browning Controller February 20, 1995
- -------------------- (Principal Accounting
Troy B. Browning Officer)
/s/ Richard P. Anderson Director February 20, 1995
- -----------------------
Richard P. Anderson
/s/ Paul A. Becker Director February 20, 1995
- ------------------
Paul A. Becker
/s/ James W. Crook Director February 20, 1995
- ------------------
James W. Crook
</TABLE>
-16-
<PAGE> 18
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James E. Fligg Director February 20, 1995
- ------------------
James E. Fligg
/s/ Robert P. Guyton Director February 20, 1995
- --------------------
Robert P. Guyton
/s/ Charles P. Moreton Director February 20, 1995
- ----------------------
Charles P. Moreton
/s/ Paul W. Murrill Director February 20, 1995
- -------------------
Paul W. Murrill
/s/ William A. Percy, II Director February 20, 1995
- ------------------------
William A. Percy, II
/s/ Maurice T. Reed, Jr. Director February 20, 1995
- ------------------------
Maurice T. Reed, Jr.
/s/ Leland R. Speed Director February 20, 1995
- -------------------
Leland R. Speed
/s/ R. Gerald Turner Director February 20, 1995
- --------------------
R. Gerald Turner
</TABLE>
-17-
<PAGE> 19
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
4.1 Articles IV, VIII, IX and X of the Registrant's Articles of
Incorporation, as amended, are included as part of Exhibit 3(a) to
the Registrant's Annual Report on Form 10-K for the year ended
June 30, 1992, as amended by the Registrant's Form 8 filed with
the Securities and Exchange Commission on October 21, 1992, and
are incorporated herein by reference.
4.2 The Statements of Resolutions establishing the Registrant's 1994-1
Series Convertible Preferred Stock.
4.3 Articles II, V and VI of the Registrant's Bylaws are included in
Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for
the fiscal year ended June 30, 1991, and are incorporated herein
by reference.
4.4 Indenture, dated as of November 14, 1994, between the Registrant
and Deposit Guaranty National Bank, as Trustee, relating to the
Registrant's 1994-1 Series Convertible Subordinated Debentures,
including the Form of such Debentures.
4.5 Amended and Restated Rights Agreement between First Mississippi
Corporation and Ameritrust Company National Association was filed
as Exhibit 1 to the Registrant's Current Report on Form 8-K, dated
February 28, 1989, and is incorporated herein by reference.
5.1 Opinion of J. Steve Chustz as to legality of securities being
registered.
24.1 Consent of J. Steve Chustz is contained within the opinion of
counsel filed as Exhibit 5.1.
24.2 Consent of KPMG Peat Marwick LLP.
25 Statement of Eligibility of Trustee (see Statement on Form T-1
filed concurrently with this Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.2
Statement of Resolution
The Chairman advised the Board of the necessity of a
resolution authorizing a series of convertible preferred stock to be issued at
the time of conversion of the 1994-1 Series Convertible Subordinated Debentures
under the 1988 Long-Term Incentive Plan. Upon motion duly made, seconded and
unanimously passed, the following resolution was passed:
WHEREAS, the Articles of Incorporation, as amended,
of this Corporation authorize the issuance of up to 20,000,000
shares of preferred stock issuable from time to time in one or
more series; and
WHEREAS, the Board of Directors of this Corporation
is authorized in its Articles of Incorporation to determine
the form, class, series and amounts in which such preferred
stock shall be issued; the price or prices (not less than par)
at which such stock shall be sold; the dividend, conversion
rates, conversion prices, par value, voting privileges,
redemption prices, maturity dates, and any other terms and
conditions relative to the issuance of such preferred stock;
and
WHEREAS, the only preferred stock previously
authorized for issuance by the Board of Directors consists of
136,500 shares of 1984-A Series Convertible Preferred Stock,
109,700 shares of 1985-A Series Convertible Preferred Stock,
1,000,000 shares of Series X Junior Participating Preferred
Stock, 195,000 shares of 1986-A Series Convertible Preferred
Stock, 42,600 shares of 1982-A Series Convertible Preferred
Stock, 195,200 shares of 1982-B Series Convertible Preferred
Stock, 33,200 shares of 1982-C Series Convertible Preferred
Stock, 14,500 shares of 1982-D Series Convertible Preferred
Stock, 51,000 shares of 1983-A Series Convertible Preferred
Stock, 5,000 shares of 1984-B Series Convertible Preferred
Stock, 97,000 shares of 1987-A Series Convertible Preferred
Stock, 156,000 shares of 1988-A Series Convertible Preferred
Stock, 11,000 shares of 1988-1 Series Convertible Preferred
Stock, 103,000 shares of 1989-A Series Convertible Preferred
Stock, 45,000 shares of 1989-1 Series Convertible Preferred
Stock, 11,000 shares of the 1989-2 Series Convertible
Preferred Stock, 138,000 shares of the 1990-1 Series
<PAGE> 2
Convertible Preferred Stock, 11,000 shares of the 1990-2
Series Convertible Preferred Stock, 155,000 shares of the
1991-1 Series Convertible Preferred Stock, 11,000 shares of
the 1991-2 Series Convertible Preferred Stock, 11,000 shares
of the 1992-1 Series Convertible Preferred Stock and pursuant
to its authority, the Board of Directors desires to establish
an additional series of preferred stock known as the "1994-1
Series Convertible Preferred Stock" to be available for
issuance solely upon conversion of the Corporation's 1994-1
Series Convertible Subordinated Debentures related to those
certain debenture options automatically granted November 14,
1994, and further desires to determine and fix the rights,
preferences and other terms and conditions relating to such
series and the number of shares constituting such series;
NOW, THEREFORE, BE IT RESOLVED, that the Board of
Directors hereby establishes a series of preferred stock of
the Corporation to be designated 1994-1 Series Convertible
Preferred Stock, which shall be available for issuance solely
upon conversion of the Corporation's 1994-1 Series Convertible
Subordinated Debentures, which, in turn, will be available for
issuance in accordance with and upon exercise of certain
options, all of which shall be granted on the same date
pursuant to the Corporation's 1988 Long-Term Incentive Plan,
entitling the holders thereof to purchase such series of
debentures (such date being referred to as the "Original Grant
Date");
BE IT FURTHER RESOLVED, that the 1994-1 Series
Convertible Preferred Stock shall consist of 11,000 shares;
BE IT FURTHER RESOLVED, that the rights, preferences
and other terms and conditions of the 1994-1 Series
Convertible Preferred Stock shall be as follows:
1. PAR VALUE. The par value for the 1994-1 Series
Convertible Preferred Stock shall be $1.00 per share.
2. DIVIDENDS. The holders of record of 1994-1 Series
Convertible Preferred Stock shall be entitled to receive, out
of funds
<PAGE> 3
legally available therefor, cash dividends at the rate of $.05
per share per quarter. All dividends payable hereunder shall
be payable quarterly or otherwise as the Board of Directors
may from time to time determine when and as declared by the
Board of Directors. The right to such dividends on 1994-1
Series Convertible Preferred Stock shall not be cumulative and
no right shall accrue to the holders of such shares by reason
of the fact that dividends on such shares are not declared in
any prior year. The holders of 1994-1 Series Convertible
Preferred Stock shall be entitled to no other cash dividends
in excess of the dividends at said rate.
3. REDEMPTION. The 1994-1 Series Convertible Preferred
Stock may be redeemed, in whole or in part, at the option of
the Corporation by vote of its Board of Directors, at any time
or from time to time, at a redemption price per share equal to
the "Purchase Price," as defined below, plus an amount equal
to all dividends declared but unpaid at the dated fixed for
redemption, and such price, plus such dividends, is
hereinafter referred to as the "Redemption Price." The
Purchase Price per share shall be the market value, as
determined by the Board of Directors, of one share of the
Corporation's Common Stock on the Original Grant Date.
In case of the redemption of only a part of the outstanding
1994-1 Series Convertible Preferred Stock, this Corporation
shall designate by lot the shares to be redeemed or shall
effect such redemption pro rata.
Not more than 60 days, but at least 20 days prior to the date
fixed for redemption, a written notice shall be mailed to each
holder of record of 1994-1 Series Convertible Preferred Stock
whose shares are to be redeemed, by certified mail with
postage prepaid, addressed to each such holder at his address
as shown on the records of the Corporation (a) notifying each
holder of the election of the Corporation to redeem such
shares, (b) stating the date fixed for redemption thereof, (c)
setting forth the Redemption Price, and (d) stating the place
at which each such holder may obtain payment
<PAGE> 4
of the Redemption Price upon surrender of his share
certificates.
On or after the date fixed in such notice of redemption, each
holder of 1994-1 Series Convertible Preferred Stock to be
redeemed shall present and surrender his certificate or
certificates representing such stock to this Corporation at a
place designated in such notice and thereupon the Redemption
Price of such shares shall be paid to or on the order of the
person whose name appears on such certificate or certificates
as the owner thereof and each surrendered certificate shall be
canceled. In case less than all of the shares represented by
any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares. From and after the
date fixed in any such notice as the date of redemption,
unless default is made in the payment of the Redemption Price,
all rights of the holders thereof as shareholders of the
Corporation, except the right to receive the Redemption Price,
shall cease and determine, and such shares shall not
there-after be transferred on the books of the Corporation,
and such stock shall not be deemed to be outstanding for any
purpose whatsoever.
The Corporation may at its option at any time after such
notice of redemption has been given, deposit a sum sufficient
to redeem, on the date fixed for redemption, the shares of
1994-1 Series Convertible Preferred Stock called for
redemption and not yet redeemed with a bank or trust company
in Mississippi, as a trust fund for the benefit of the
respective holders of the shares designated for redemption,
and such deposit, from and after the date fixed for
redemption, shall constitute full payment of the Redemption
Price of the shares to the holders thereof and shall be
conclusive evidence that no default shall be made in the
payment of the Redemption Price as to such shares.
Shares of the 1994-1 Series Convertible Preferred Stock
redeemed by the Corporation shall not thereafter be disposed
of as shares of such Series, but upon acceptance by the
Secretary of State of Mississippi for filing of a statement of
cancellation relating to the redeemed shares, such shares
shall become
<PAGE> 5
authorized and unissued shares of Preferred Stock which may be
designated as shares of any other series.
4. LIQUIDATION PREFERENCE. In the event of any
voluntary or involuntary dissolution, liquidation or winding
up of the Corporation, the holders of shares of 1994-1 Series
Convertible Preferred Stock outstanding shall be entitled to
receive, or to have deposited in trust for them as provided in
Section 3 here-of, out of assets of the Corporation, before
any distribution of any assets shall be made to the holders of
Common Stock or other shares junior to the 1994-1 Series
Convertible Preferred Stock as to distribution of assets, an
amount which shall be equal to the Purchase Price, as defined
above, for such shares plus declared but unpaid dividends
thereon. After the holders of 1994-1 Series Convertible
Preferred Stock shall have received such amount, they shall
not participate in any remaining assets and surplus funds of
the Corporation.
If the amounts which each of the holders of the shares of the
1994-1 Series Convertible Preferred Stock, and any other
series of Preferred Stock of the Corporation ranking equally
as to distribution of assets with the shares of 1994-1 Series
Convertible Preferred Stock, are entitled to receive in such
events are not paid, or deposited in trust, in full, the
shares of 1994-1 Series Convertible Preferred Stock and of
such other series shall share ratably in any distribution of
assets in accordance with the amounts which would be payable
on such distribution if all amounts to which the holders of
the 1994-1 Series Convertible Preferred Stock and of each such
series are entitled were paid, or deposited in trust, in full.
Neither the merger of the Corporation with or into any other
Corporation nor the sale of all or substantially all of its
assets shall be deemed a dissolution, liquidation or winding
up of the Corporation within the meaning of this Section.
5. CONVERSION RIGHTS. The holders of shares of 1994-1
Series Convertible Preferred Stock shall have conversion
rights as follows:
<PAGE> 6
(a) The shares of 1994-1 Series Convertible
Preferred Stock shall be convertible, at the option of the
respective holders thereto, at the office of the Corporation
into fully paid and nonassessable shares of Common Stock of
the Corporation, as follows:
(i) The number of shares of Common Stock
into which a share of 1994-1 Series Convertible Preferred
Stock is to be converted shall be determined by multiplying
one share times the "Conversion Multiplier," as described
below. On the "Original Grant Date," as defined above, the
Conversion Multiplier shall be one, and unless and until the
Conversion Multiplier is adjusted as provided below, each
share of 1994-1 Series Convertible Preferred Stock shall be
convertible into one share of Common Stock.
(ii) If the Corporation shall at any time
after the Original Grant Date effect a subdivision of the
outstanding Common Stock, the Conversion Multiplier then in
effect immediately before such subdivision shall be
proportionately increased, and conversely, if the Corporation
shall at any time after the Original Grant Date combine the
outstanding shares of Common Stock, the Conversion Multiplier
then in effect immediately before such combination shall be
proportionately decreased. Any adjustment hereunder shall
become effective at the close of business on the date the
subdivision or combination becomes effective.
(iii) If the Corporation shall at any time
after the Original Grant Date make or issue, without payment
of consideration, a dividend or other distribution payable in
additional shares of Common Stock, the Conversion Multiplier
then in effect shall be increased as of the close of business
on the record date for the determination of holders entitled
thereto or the date on which the stock transfer books of the
Corporation are closed with respect thereto, or, if no such
record date has been fixed and the stock transfer books are
not so closed, the date of such making or issuance, by
multiplying the Conversion Multiplier then in effect by a
fraction:
<PAGE> 7
(A) the numerator of which shall be
the total number of shares of Common Stock issued and
outstanding immediately prior to such date, plus the number of
shares of Common Stock issuable in payment of such dividend or
distribution; and
(B) the denominator of which shall
be the total number of shares of Common Stock issued and
outstanding immediately prior to such date;
Provided, however, that if such record date shall have been
fixed or if the stock transfer books are so closed and such
dividend is not fully paid or if such distribution is not
fully made on the date therefor, the Conversion Multiplier
shall be recomputed accordingly as of the close of business on
such date of alteration.
(iv) If the Corporation shall at any time
after the Original Grant Date make or issue, without payment
of consideration, a dividend or other distribution payable to
holders of Common Stock in securities or other assets of the
Corporation (other than cash or shares of Common Stock),
provisions shall be made so that the holders of the 1994-1
Series Convertible Preferred Stock shall receive upon the
conversion thereof in addition to the number of shares of
Common Stock receivable thereupon, the amount of securities or
other assets of the Corporation that they would have received
had their 1994-1 Series Convertible Preferred Stock been
converted into Common Stock on the date of such event and had
they thereafter, during the period from the date of such event
to and including the conversion date, retained such securities
or other assets receivable by them as aforesaid during such
period, giving application to all adjustments called for
during such period under this Section 5 with respect to the
rights of the holders of the 1994-1 Series Convertible
Preferred Stock.
(v) In case of any capital
reorganization or any reclassification of the capital stock of
the Corporation or in case of the consolidation or merger of
the Corporation with or into another corporation or the
conveyance of all or substantially all of the assets of the
Corporation to another
<PAGE> 8
corporation, each share of 1994-1 Series Convertible Preferred
Stock shall thereafter be convertible into the number of
shares of stock or other securities or property to which a
holder of the number of shares of Common Stock of the
Corporation deliverable upon conversion of such shares of
1994-1 Series Convertible Preferred Stock would have been
entitled upon such reorganization, reclassification,
consolidation, merger or conveyance; and in any such case,
appropriate adjustment (as determined in good faith by the
Board of Directors) shall be made in the application of the
provisions herein set forth with respect to the rights and
interests thereafter of the holders of the shares of 1994-1
Series Convertible Preferred Stock, to the end that the
provisions set forth herein shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of
stock or other property thereafter deliverable upon the
conversion of the shares of 1994-1 Series Convertible
Preferred Stock.
(vi) In each case of an adjustment of the
Conversion Multiplier or the number of shares of Common Stock
or other securities issuable upon conversion of the 1994-1
Series Convertible Preferred Stock, the Corporation shall
compute such adjustment in accordance herewith and prepare a
certificate showing such adjustment, and shall, upon request,
provide a copy of such certificate to each registered holder
of the 1994-1 Series Convertible Preferred Stock. The
certificate shall set forth such adjustment, showing in detail
the facts upon which such adjustment is based, including a
statement of (A) the Conversion Multiplier at the time in
effect for the 1994-1 Series Convertible Preferred Stock, and
(B) the number, type and amount, if any, of other property
that at the time would be received upon conversion of the
1994- 1 Series Convertible Preferred Stock.
(b) Before any holder of 1994-1 Series
Convertible Preferred Stock shall be entitled to convert the
same into shares of Common Stock, he shall surrender the
certificate or certificates therefor, duly endorsed, at the
office of the Corporation and shall give written notice to the
Corporation that he elects to convert the same and shall state
in
<PAGE> 9
writing therein the name or names in which he wishes the
certificate or certificates for shares of Common Stock to be
issued. If the holder fails to specify the name in which
certificates are to be issued, they shall be issued in his
name. The Corporation, as soon as practicable thereafter,
shall issue and deliver at such office to such holder of
1994-1 Series Convertible Preferred Stock, or to his nominee
or nominees, certificates for the number of full shares of
Common Stock to which he shall be entitled as aforesaid,
together with cash in lieu of any fraction of a share as
hereinafter provided. Such conversion shall be deemed to have
been made as of the date of such surrender of the shares of
1994-1 Series Convertible Preferred Stock to be converted (or,
in the event of a proposed redemption and if the Corporation
so allows, on the date of receipt of satisfactory notice of
conversion if certificates of 1994-1 Series Convertible
Preferred Stock so converted are thereafter delivered to the
Corporation within 30 days), and the person or persons
entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock on
said date.
(c) In case:
(i) the Corporation shall take a record
of the holders of shares of its Common Stock for the purpose
of entitling them to receive a dividend, or any other
distribution, other than ordinary cash dividends; or
(ii) the Corporation shall take a record
of the holders of shares of its Common Stock for the purpose
of entitling them to subscribe for or purchase any shares of
stock of any class or to receive any other rights; or
(iii) of any capital reorganization of the
Corporation, reclassification of the capital stock of the
Corporation (other than a subdivision or combination of its
outstanding shares of Common Stock), consolidation or merger
of the Corporation with or into another corporation, or
conveyance of all or substantially all of
<PAGE> 10
the assets of the Corporation into another corporation; or
(iv) of the voluntary or involuntary
dissolution, liquidation or winding up of the Corporation,
then the Corporation shall cause to be mailed to the holders
of record of 1994-1 Series Convertible Preferred Stock or any
security convertible into 1994-1 Series Convertible Preferred
Stock at their last addresses as they shall appear on the
records of the Corporation, at least 20 days (or 10 days in
any case specified in clauses (1) and (2) above) prior to the
applicable record date hereinafter specified, a notice stating
(1) the date on which a record is to be taken for the purpose
of such dividend or distribution of rights, or, if a record is
not to be taken, the date as of which the holders of Common
Stock of record would be entitled to such dividend or
distribution of rights, or (2) the date on which such capital
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that the
holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other
assets deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or
winding up.
(d) The Corporation will at all times reserve and
keep available out of its authorized Common Stock and/or
shares of its Common Stock then owned or held by or for the
account of the Corporation, solely for the purpose of delivery
upon conversion of 1994-1 Series Convertible Preferred Stock,
such number of shares of Common Stock as shall then be
deliverable upon the conversion of all outstanding or
potentially issuable 1994-1 Series Convertible Preferred
Stock. All shares of Common Stock which shall be so
deliverable shall be duly and validly issued and fully paid
and nonassessable.
(e) If any shares of Common Stock required to be
reserved for purposes of conversion of 1994-1 Series
Convertible Preferred Stock require registration with or
<PAGE> 11
approval of any governmental authority under any federal or
state law, or listing upon any national securities exchange,
before such shares may be issued upon conversion, the
Corporation will in good faith and as expeditiously as
possible endeavor to cause such shares to be duly registered,
approved or listed, as the case may be.
(f) The Corporation will pay any and all issue
and other taxes that may be payable in respect of any issue or
delivery of shares of Common Stock on conversion of shares of
1994-1 Series Convertible Preferred Stock pursuant hereto.
The Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in
the issue and delivery of shares of Common Stock in a name
other than that in which the shares of 1994-1 Series
Convertible Preferred Stock so converted were registered, and
no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Corporation the
amount of any such tax, or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(g) No fractional shares of Common Stock shall be
issued upon the conversion of shares of 1994-1 Series
Convertible Preferred Stock. If any fractional interest in a
share of Common Stock would, except for the provisions of the
Subsection, be deliverable upon the conversion of any shares
of 1994-1 Series Convertible Preferred Stock, the Corporation
shall, in lieu of delivering the fractional share therefor,
adjust such fractional interest by payment to the holder of
such surrendered shares of 1994-1 Series Convertible Preferred
Stock of an amount in cash equal (computed to the nearest
cent) to the current market value of such fractional interest,
as determined in good faith by the Board of Directors of the
Corporation.
6. VOTING RIGHTS. Except as provided by law or as
provided above, the holders of 1994-1 Series Convertible
Preferred Stock shall not be entitled to notice of
stockholders' meetings or to vote upon the election of
directors or upon any other matter.
<PAGE> 1
EXHIBIT 4.4
FIRST MISSISSIPPI CORPORATION
DEPOSIT GUARANTY NATIONAL BANK
Trustee
_______________
INDENTURE
DATED AS OF NOVEMBER 14, 1994
_______________
1994-1 SERIES CONVERTIBLE
SUBORDINATED DEBENTURES
<PAGE> 2
TABLE OF CONTENTS
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PARTIES ....................................................... 1
RECITALS ...................................................... 1
Purpose of Indenture ................................. 1
Form of Debenture .................................... 1
Form of Trustee's Certificate of Authentication ...... 7
Form of Conversion Notice ............................ 8
Compliance with Legal Requirements ................... 8
Consideration for Indenture .......................... 9
ARTICLE ONE
Definitions
Section 1.01 Definitions ...................................... 9
Authorized Newspaper .................. 9
Board of Directors .................... 9
Board Resolution ...................... 9
Common Stock .......................... 9
Company ............................... 10
Conversion Date ....................... 10
Corporation ........................... 10
Debenture or Debentures; Outstanding .. 10
Debentureholder ....................... 11
Due Date .............................. 11
Event of Default ...................... 11
Indenture ............................. 11
Interest Payment Date ................. 11
Interest Rate ......................... 11
Issuance Date ......................... 11
Officers' Certificate ................. 11
Opinion of Counsel .................... 11
Prime Interest Rate ................... 12
Principal Office of the Trustee ....... 12
Record Date ........................... 12
Responsible Officer ................... 12
Senior Indebtedness ................... 13
1994-1 Series Stock ................... 13
Subsidiary or Subsidiaries ............ 13
Trustee ............................... 14
Trust Indenture Act of 1939 ........... 14
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ARTICLE TWO
Issue, Description, Execution, Registration and
Exchange of Debentures
Section 2.01. Designation, Amount and Issue
of Debentures .............................. 14
Section 2.02. Form of Debentures ......................... 15
Section 2.03. Denomination and Date of Debentures ........ 15
Section 2.04. Execution of Debentures .................... 16
Section 2.05. Registration, Registration of Transfer
and Exchange of Debentures ................. 17
Section 2.06. Mutilated, Destroyed, Lost or Stolen
Debentures ................................. 17
Section 2.07. Temporary Debentures ....................... 18
Section 2.08. Cancellation of Debentures ................. 19
Section 2.09. Benefits of Indenture Provisions ........... 19
Section 2.10. Maintenance of Office or
Agency by Trustee .......................... 19
Section 2.11. Condition to Issuance of Debentures ........ 20
ARTICLE THREE
Prepayment and Redemption of Debentures
Section 3.01. Mandatory and Optional Prepayment
of Debentures .............................. 20
Section 3.02. Redemption of Debentures ................... 20
Section 3.03. Deposit of Monies for Redemption
of Prepayment .............................. 21
Section 3.04. Limitation on Prepayment ................... 22
Section 3.05. Holder's Right to Elect Redemption ......... 22
ARTICLE FOUR
Subordination of Debentures
Section 4.01. Agreement that Debentures be Subordinate ... 22
Section 4.02. Subordination to Senior Indebtedness ....... 22
Section 4.03. Payment to Holders of Senior Indebtedness
of Certain Amounts Received by
Debentureholders ........................... 24
Section 4.04. Notice to Trustee of Specified Events;
Reliance on Certificate of Liquidating
Agent ...................................... 25
Section 4.05. Subrogation ................................ 26
Section 4.06. Obligation to Pay Not Impaired ............. 26
Section 4.07. Reliance by Senior Indebtedness on
Subordination Provisions ................... 26
Section 4.08. Certain Payments and Credits Permitted ..... 27
Section 4.09. Subordination Not to be Prejudiced by
Certain Acts ............................... 27
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Section 4.10. Trustee Authorized to Effectuate
Subordination .............................. 27
Section 4.11. Trustee's Rights Regarding Senior
Indebtedness Held by It, Etc. .............. 27
Section 4.12. Trustee and Paying Agents Not Chargeable
with Knowledge Until Notice ................ 28
Section 4.13 1984-A, 1985-A, 1986-A, 1982-A, 1982-B,
1982-C, 1982-D, 1983-A, 1984-B, 1987-A,
1988-A, 1988-1, 1989-A, 1989-1, 1989-2,
1990-1, 1990-2, 1991-1 and 1991-2 Series
Convertible Subordinated Debentures......... 28
ARTICLE FIVE
Conversion of Debentures
Section 5.01. Conversion Privilege; Conversion Price ..... 29
Section 5.02. Conversion Period; Limitation on Exercise .. 29
Section 5.03. Manner of Exercising Conversion Privilege .. 31
Section 5.04. Fractional Shares .......................... 32
Section 5.05. Notice of Certain Corporate Action ......... 32
Section 5.06. Company to Reserve Stock ................... 33
Section 5.07. Taxes on Conversions ....................... 33
Section 5.08. Covenant as to Stock ....................... 33
Section 5.09. Provision in Case of Consolidation,
Merger or Sale ............................. 34
Section 5.10. Trustee's Disclaimer of Responsibility
for Certain Matters ........................ 34
Section 5.11. Covenant as to Conversion Rights ........... 35
ARTICLE SIX
Particular Covenants of the Company
Section 6.01. Payment of Principal and Interest .......... 35
Section 6.02. Offices for Notices, Payments and
Conversions ................................ 35
Section 6.03. Paying Agents .............................. 35
Section 6.04. Appointment to Fill a Vacancy in Office
of Trustee ................................. 36
Section 6.05. Further Instruments and Acts ............... 36
Section 6.06. Payment of Taxes; Maintenance of Corporate
Existence; Maintenance of Properties;
Property Insurance ......................... 36
Section 6.07. Annual Review Certificate .................. 38
Section 6.08. No Lien Created ............................ 38
ARTICLE SEVEN
Debentureholders' Lists and Reports by the Company
and the Trustee
Section 7.01. Debentureholders' Lists .................... 38
Section 7.02 Preservation and Disclosure of Lists ....... 39
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Section 7.03. Reports by the Company ..................... 41
Section 7.04. Reports by the Trustee ..................... 42
ARTICLE EIGHT
Remedies of the Trustee and Debentureholders
on Event of Default
Section 8.01. Events of Default .......................... 44
Section 8.02. Payment of Debentures on Default;
Suit Therefor .............................. 46
Section 8.03. Application of Monies Collected by
Trustee .................................... 48
Section 8.04. Proceedings by Debentureholders ............ 49
Section 8.05. Proceedings by Trustee ..................... 50
Section 8.06. Remedies Cumulative and Continuing ......... 50
Section 8.07. Direction of Proceedings and Waiver of
Defaults by Majority of Debentureholders ... 50
Section 8.08. Notice of Defaults ......................... 51
Section 8.09. Undertaking to Pay Costs ................... 51
Section 8.10. Enforcement of Conversion Rights ........... 52
Section 8.11. Waiver of Stay, Extension or Usury Laws .... 52
ARTICLE NINE
Concerning the Trustee
Section 9.01. Duties and Liabilities of Trustee .......... 52
Section 9.02. Reliance on Documents and Counsel .......... 54
Section 9.03. No Responsibility for Recitals or
Certain Other Matters ...................... 55
Section 9.04. Trustee, Paying Agent, Conversion Agent or
Registrar May Own Debentures ............... 55
Section 9.05. Monies to be Held in Trust ................. 55
Section 9.06. Compensation and Expenses of Trustee ....... 56
Section 9.07. Officers' Certificate as Evidence .......... 56
Section 9.08. Conflicting Interest of the Trustee ........ 56
Section 9.09. Eligibility of Trustee ..................... 64
Section 9.10. Resignation or Removal of Trustee;
Appointment of Successor Trustee ........... 64
Section 9.11. Acceptance by Successor Trustee ............ 66
Section 9.12. Succession by Merger and Certain
Other Events ............................... 66
Section 9.13. Limitation on Rights of Trustee as
a Creditor ................................. 67
Section 9.14. Records of Trustee ......................... 71
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ARTICLE TEN
Concerning the Debentureholders
Section 10.01. Action by Debentureholders ................. 72
Section 10.02. Proof of Execution by
Debentureholders; Evidence of Holdings ..... 72
Section 10.03. Who Deemed Absolute Owners ................. 73
Section 10.04. Company-owned Debentures Disregarded ....... 73
Section 10.05. Revocation of Consents; Future
Holders Bound .............................. 74
Section 10.06. Transfer of Debentures ..................... 74
ARTICLE ELEVEN
Debentureholders' Meetings
Section 11.01. Purposes of Meetings ....................... 75
Section 11.02. Call of Meetings by Trustee ................ 75
Section 11.03. Call of Meetings by Company or
Debentureholders ........................... 75
Section 11.04. Qualifications for Voting .................. 76
Section 11.05. Regulations ................................ 76
Section 11.06. Voting ..................................... 77
Section 11.07. No Delay of Rights by Meeting .............. 77
ARTICLE TWELVE
Supplemental Indentures
Section 12.01. Supplemental Indentures without
Consent of Debentureholders ................ 77
Section 12.02. Supplemental Indentures with
Consent of Debentureholders ................ 79
Section 12.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures .......... 80
Section 12.04. Notation on Debentures ..................... 80
Section 12.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee .......... 81
ARTICLE THIRTEEN
Consolidation, Merger and Sale by the Company
Section 13.01. Consolidation, Merger or Sale of
Assets Permitted ........................... 81
Section 13.02. Succession by Successor Corporation ........ 81
Section 13.03. Evidence to be Furnished Trustee ........... 82
ARTICLE FOURTEEN
Satisfaction and Discharge of Indenture; Unclaimed Monies
Section 14.01. Discharge of Indenture ..................... 82
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Section 14.02. Deposited Monies to be Held in
Trust by Trustee ........................... 83
Section 14.03. Paying Agent to Repay Monies Held .......... 83
Section 14.04. Unclaimed Monies ........................... 83
ARTICLE FIFTEEN
Immunity of Incorporators, Stockholders, Officers
and Directors
Section 15.01. Indenture and Debentures Solely
Corporate Obligations ...................... 84
ARTICLE SIXTEEN
Miscellaneous Provisions
Section 16.01. Provisions Binding on Company's
Successors ................................. 84
Section 16.02. Official Acts by Successor Corporation ..... 84
Section 16.03. Notices .................................... 84
Section 16.04. Subscription ............................... 85
Section 16.05. Governing Law .............................. 85
Section 16.06. Evidence of Compliance with Conditions
Precedent .................................. 85
Section 16.07. Legal Holidays ............................. 85
Section 16.08. Trust Indenture Act to Control ............. 86
Section 16.09. Table of Contents and Headings ............. 86
Section 16.10. Method of Publication or Other Notice
When Indenture Provision for Publication
or Notice Cannot be Followed ............... 86
Section 16.11. Invalidity of Some Provisions Shall
Not Affect Others .......................... 86
Section 16.12. Execution in Counterparts .................. 86
</TABLE>
________________
Exhibit A. Form of Consent to Pledge (See Section 10.06)
vi
<PAGE> 8
THIS INDENTURE ("Indenture"), is dated as of November 14,
1994, between FIRST MISSISSIPPI CORPORATION, a corporation duly organized and
existing under the laws of the State of Mississippi (hereinafter sometimes
referred to as the "Company"), and DEPOSIT GUARANTY NATIONAL BANK, a national
banking association organized under the laws of the United States (hereinafter
sometimes referred to as the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue of its 1994-1 Series Convertible Subordinated
Debentures (hereinafter sometimes referred to as the "Debentures"), in the
aggregate principal amount of $21,312.50, and to provide the terms and
conditions upon which the Debentures are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, the text of the Debentures is to be substantially in
the following form:
[Face of Debentures]
THIS DEBENTURE MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, OR OTHERWISE
HYPOTHECATED EXCEPT AS PERMITTED UNDER SECTION 10.06. OF THE INDENTURE REFERRED
TO HEREIN. ANY ATTEMPTED SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER
HYPOTHECATION OF THIS DEBENTURE NOT MADE IN ACCORDANCE WITH SUCH SECTION 10.06.
AND ANY FORECLOSURE ON A PLEDGE OR HYPOTHECATION NOT MADE IN ACCORDANCE WITH
SUCH SECTION 10.06., WILL RESULT IN TERMINATION OF THE CONVERSION RIGHT OF THIS
DEBENTURE. SUCH CONVERSION RIGHT MAY NOT BE EXERCISED AT ANY TIME THAT THIS
DEBENTURE IS PLEDGED OR OTHERWISE SERVES AS COLLATERAL FOR ANY LOAN.
<TABLE>
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No._____________________________ $_____________________________
Issuance Date: _________________ Due Date: November 13, 2004
Conversion Price: $21.3125 per
share
</TABLE>
1
<PAGE> 9
FIRST MISSISSIPPI CORPORATION
1994-1 SERIES CONVERTIBLE
SUBORDINATED DEBENTURE
FIRST MISSISSIPPI CORPORATION, a corporation duly organized
and existing under the laws of the State of Mississippi (herein referred to as
the "Company," which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to _____________________________________________, the principal
sum of ____________________________________________ Dollars at the office or
agency of the Company in Jackson, Mississippi, on the Due Date referred to
above, in such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts,
and to pay interest on said principal sum at a floating interest rate per annum
(determined from time to time as provided in the Indenture) equal to 1% below
the Prime Interest Rate (as defined in and pursuant to the Indenture) or the
maximum legal rate under applicable law, if less, at either of said office or
agency, from the Issuance Date referred to above, or from the most recent
interest payment date to which interest has been paid or duly provided for; and
such interest shall be payable (i) semi-annually on January 1 and July 1 of
each year (each such date being referred to herein as an "Interest Payment
Date"), commencing on the first Interest Payment Date following the date of
original issuance, and (ii) on the Due Date referred to above, until payment of
said principal sum has been made or duly provided for; and provided further,
however, that payment of interest payable on any Interest Payment Date may be
made by check mailed to the address of the person entitled thereto as such
address shall appear on the register maintained by the Debenture registrar or
to such other address as is designated by such holder in writing as provided
below.
The interest installment so payable on any Interest Payment
Date will, subject to certain exceptions provided in the Indenture referred to
on the reverse hereto, be paid to the person in whose name this Debenture (or
any Debenture or Debentures evidencing the same debt) is registered at the
close of business on the Record Date for such interest installment, at his
address appearing on the Debenture register or such other address as is
designated by such holder in writing received by the Company and the Debenture
registrar prior to such Record Date, which Record Date shall be the day
(whether or not a business day) next preceding such Interest Payment Date.
The provisions of this Debenture are continued on the reverse
hereof, and such continued provisions shall for all purposes have the same
effect as though fully set forth at this time.
2
<PAGE> 10
IN WITNESS WHEREOF, FIRST MISSISSIPPI CORPORATION has caused
this Debenture to be executed in its corporate name by the manual or facsimile
signature of its President or one of its Vice Presidents and impressed or
imprinted with its corporate seal or facsimile thereof, attested by the manual
or facsimile signature of its Secretary or one of its Assistant Secretaries.
FIRST MISSISSIPPI CORPORATION
Attest:_____________________ By:
_______________________________
Secretary President
[Corporate Seal]
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<PAGE> 11
[Reverse Side of Debenture]
FIRST MISSISSIPPI CORPORATION
1994-1 SERIES CONVERTIBLE
SUBORDINATED DEBENTURE
This Debenture is one of a duly authorized issue of Debentures
of the Company, designated as its 1994-1 Series Convertible Subordinated
Debentures (herein referred to as the "Debentures"), limited to the aggregate
principal amount of $21,312.50 all issued and to be issued under and pursuant
to an Indenture dated as of November 14, 1994 (herein referred to as the
"Indenture"), duly executed and delivered by the Company to Deposit Guaranty
National Bank (herein referred to as the "Trustee," which term includes any
Successor Trustee under the Indenture), to which Indenture and all indentures
supplemental hereto reference is hereby made for a description of the
respective rights thereunder of the Trustee, the Company and the holders of the
Debentures.
The indebtedness evidenced by the Debentures is, to the extent
provided in the Indenture, subordinate and junior to the prior payment in full
of the principal of and interest on all Senior Indebtedness, as defined in the
Indenture, and this Debenture is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Debenture, by accepting
the same, agrees to be bound by such provisions of the Indenture and authorizes
and directs the Trustee to take such action on his behalf as may be necessary
or appropriate to acknowledge or effectuate the subordination of this Debenture
as provided in the Indenture and appoints the Trustee his attorney-in-fact for
any and all such purposes. Each holder of this Debenture, by accepting the
same, agrees that each holder of Senior Indebtedness, whether created or
acquired before or after the issuance of the Debentures, shall be deemed
conclusively to have relied on such provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
Subject to the provisions of the Indenture, at the option of
the holder hereof, this Debenture or any portion hereof may, at any time more
than six months after the date of the award of the debenture option pursuant to
which the Debenture was purchased and at or before the close of business on the
Due Date referred to on the face hereof, be converted at the principal amount
hereof, or of such portion hereof, into fully paid and nonassessable shares of
the Company's Series 1994-1 Convertible Preferred Stock (the "1994-1 Series
Stock") at the Conversion Price per share set forth on the face hereof upon
surrender of this Debenture to the Company at its office or agency in Jackson,
Mississippi, accompanied by written notice of election to convert and, if so
required by the Company, instruments of transfer in form satisfactory to the
Company, duly executed by the registered
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<PAGE> 12
holder or by his duly authorized attorney. Fractional shares of 1992-1 Series
Stock will not be issued upon any conversion, but an amount equal to the value
of such fractional interest at the conversion price per share, will be paid in
cash to the registered holder. Accrued interest on this Debenture through the
day immediately preceding the date of conversion will be paid as provided in
the Indenture.
The Debentures may not be prepaid by the Company prior to the
Due Date except as provided in Sections 3.01, 3.02, and 3.04 of the Indenture
or at the election of the holder as provided in Section 3.05 of the Indenture.
The Debentures are issuable as registered Debentures without
coupons in denominations approved by the Company, such approval to be evidenced
by the execution thereof. In the manner and subject to the limitations
provided in the Indenture, Debentures are exchangeable, without charge except
for any tax or other governmental charge imposed in connection therewith, for
other Debentures of any other authorized denomination or denominations of an
equal aggregate principal amount at the office or agency of the Company
referred to on the face hereof.
The Company, the Trustee, any paying agent, any conversion
agent and any Debenture registrar may deem and treat the registered holder
hereof as the absolute owner hereof (whether or not this Debenture shall be
overdue and notwithstanding any notation of ownership or other writing hereon
by anyone other than the Company or any Debenture registrar), for the purpose
of receiving payment of or on account of the principal hereof, and interest
hereon, for the conversion hereof and for all other purposes, and neither the
Company nor the Trustee nor any paying agent, conversion agent or Debenture
registrar shall be affected by any notice to the contrary.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal hereof may be declared,
and upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture. The
Indenture provides that in certain events such declaration and its consequences
may be waived by the holders of a majority in aggregate principal amount of the
Debentures then outstanding.
It is also provided in the Indenture that, prior to any
declaration accelerating the maturity of the Debentures as the result of an
Event of Default, the holders of a majority in aggregate principal amount of
the Debentures at the time outstanding may on behalf of the holders of all of
the Debentures waive any past default under the Indenture and its consequences
except a default in the payment of the principal of or interest on any of the
Debentures. Any such consent or waiver by the holder
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<PAGE> 13
of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and any Debentures which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Debenture or such other Debentures.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less that 66-2/3% in
aggregate principal amount of the Debentures at the time outstanding, evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Debentures; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Debentures,
or reduce the rate or extend the time of payment of interest thereon, or reduce
the principal amount thereof, or modify the provisions of the Indenture with
respect to the subordination of the Debentures, or impair the right to convert
the Debentures into 1994-1 Series Stock on the terms set forth in the
Indenture, or change any place of payment where or the coin or currency in
which any payment may be made, without the consent of the holder of each
Debenture so affected, or (ii) reduce the aforesaid percentage of Debentures,
the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all Debentures then
outstanding.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the time and place and at the rate and in the
currency herein prescribed.
No recourse for the payment of the principal of or interest on
this Debenture, or for any claim based hereon or otherwise in respect hereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
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<PAGE> 14
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed
by or on behalf of the Trustee.
AND WHEREAS, the form of the Trustee's certificate of
authentication to be endorsed on the face of said Debentures shall be
substantially as follows:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Debentures described in the within mentioned Indenture.
DEPOSIT GUARANTY NATIONAL BANK,
as Trustee
By: ___________________________
Authorized Officer
7
<PAGE> 15
AND WHEREAS, the form of conversion notice to appear on the
reverse side of said Debenture shall be substantially as follows:
[FORM OF CONVERSION NOTICE]
To First Mississippi Corporation:
The undersigned holder of this Debenture hereby irrevocably exercises
the option to convert this Debenture or portion hereof below
designated into shares of 1992-1 Series Stock of First Mississippi
Corporation in accordance with the terms of the Indenture referred to
in this Debenture, and directs that the shares and any payment for
fractions thereof issuable and deliverable upon the conversion be
issued in the name of and, unless otherwise indicated, delivered to
the undersigned.
Dated: ______________________________
__________________________________________________________________
Please print name and address (including zip code number)
__________________________________________________________________
Signature of Debentureholder
Please Insert Social Security or
Other Identifying Number
***************************************************************************
* *
* *
* *
***************************************************************************
Portion to be converted
(if less than all):
$___________________________
AND WHEREAS, all acts and things necessary to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee as in this Indenture provided, and issued, the valid, binding and legal
obligations of the Company, and to constitute these presents a valid agreement
according to its terms, have been done and performed, and the execution of this
Indenture and the issue hereunder of the Debentures have in all respects been
duly authorized;
8
<PAGE> 16
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Debentures are, and are to be, authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Debentures
by the holders thereof and of the sum of One Dollar duly paid to it by the
Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee for the equal
and proportionate benefit of the respective holders from time to time of the
Debentures, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act of 1939 or which are by reference therein defined in
the Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meaning
assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of the execution of this Indenture.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper printed
in the English language, customarily published on each business day, of general
circulation in Jackson, Mississippi.
Board of Directors:
The term "Board of Directors" shall mean the Board of
Directors of the Company or the Executive Committee, if any, of such Board or
such other committee of the Board of Directors as such Board shall designate.
Board Resolution:
A resolution adopted by the Board of Directors as certified by
an officer of the Company.
Common Stock:
The term "Common Stock" shall mean the class of stock
designated as Common Stock of the Company at the date of this
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<PAGE> 17
Indenture, or any other class of stock into which the Common Stock may
hereafter be changed and into which the 1994-1 Series Stock is hereafter
convertible.
Company:
The term "Company" shall mean First Mississippi Corporation, a
Mississippi corporation, and, subject to the provisions of Article Thirteen,
shall include its successors and assigns.
Conversion Date:
The term "Conversion Date" shall mean immediately prior to the
close of business on the date on which notice of conversion provided in Section
5.03 hereof shall have been received in proper order for conversion by the
Company and such Debenture shall have been surrendered as provided in Section
5.03 hereof.
Corporation:
The term "corporation" shall mean any corporation, voluntary
association, joint stock association, business trust, or similar organization.
Debenture or Debentures; Outstanding:
The term "Debenture" or "Debentures" shall mean any debenture
or debentures, as the case may be, authenticated and delivered under this
Indenture.
The term "outstanding," when used with reference to
Debentures, shall, subject to the provisions of Section 10.04, mean, as of any
particular time, all Debentures authenticated and delivered by the Trustee
under this Indenture, except:
(a) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Debentures for the payment of which monies in the
necessary amounts shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company),
provided that, if such Debentures are to be redeemed or
prepaid, notice of such redemption or prepayment has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(c) Debentures in lieu of or in substitution for which
other Debentures shall have been authenticated and delivered
pursuant to this Indenture.
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<PAGE> 18
Debentureholder:
The term "Debentureholder," "holder of Debentures," or other
similar terms, shall mean any person in whose name a particular Debenture shall
be registered on the books of the Company kept for that purpose in accordance
with the terms hereof.
Due Date:
The term "Due Date" shall mean November 13, 2004.
Event of Default:
The term "Event of Default" shall mean any event specified in
Section 8.01, continued for the period of time, if any, therein designated.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed or, if amended or supplemented as herein provided, as so amended or
supplemented.
Interest Payment Date:
The term "Interest Payment Date" shall mean January 1 and July
1 of each year, commencing on July 1, 1995.
Interest Rate:
The term "Interest Rate" shall mean a percentage equal to 1%
less than the Prime Interest Rate.
Issuance Date:
The term "Issuance Date" shall mean the date as of which a
Debenture is issued to a Debentureholder.
Officers' Certificate:
The term "Officers' Certificate," when used with respect to
the Company, shall mean a certificate signed by the Chairman of the Board of
Directors or the President or any Vice President and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the Company.
Each such certificate shall include the statements provided for in Section
16.06 if and to the extent required by the provisions of such Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in
writing, signed by legal counsel who shall be satisfactory to the
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<PAGE> 19
Trustee and who may be an employee of, or of counsel to, the Company. Each
such opinion shall include the statements provided for in Section 16.06 if and
to the extent required by the provisions of such Section.
Prime Interest Rate:
The term "Prime Interest Rate" shall mean the rate of interest
per annum publicly announced from time to time as its prime rate by Deposit
Guaranty National Bank in Jackson, Mississippi, or, if such bank shall have
ceased to publish a "prime rate," the term shall mean such other rate of
interest per annum which such bank shall certify to the Company and the Trustee
in writing is the interest rate per annum charged by such bank which is most
closely equivalent to such "prime rate."
Principal Office of the Trustee:
The term "principal office of the Trustee," or other similar
term, shall mean the principal office of the Trustee in Jackson, Mississippi,
at which at any particular time its corporate trust business shall be
administered.
Record Date:
The term "Record Date" shall mean the Record Date specified or
determined as provided in Section 2.03 of this Indenture.
Responsible Officer:
The term "Responsible Officer," when used with respect to the
Trustee, shall mean the Chairman or Vice-Chairman of the Board of Directors or
Trustees, the Chairman or Vice-Chairman of the Executive Committee of the Board
of Directors or Trustees, the President, the Chairman of the Trust Committee,
any Vice President, the Secretary, the Treasurer, any Trust Officer, any
Assistant Vice President, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject. The term "Responsible Officer," when used with
respect to the Company, shall mean the Chairman of the Board of Directors, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
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<PAGE> 20
Senior Indebtedness:
The term "Senior Indebtedness" shall mean all indebtedness for
borrowed money (whether or not secured), heretofore or hereafter incurred by
the Company (or heretofore or hereafter incurred by another person, including
but not limited to a Subsidiary, and the repayment of which is guaranteed by
the Company or which the Company is contingently obligated to repay, purchase,
or otherwise acquire), unless the terms of this instrument evidencing such
indebtedness specifically provide that such indebtedness is not superior in
right of payment to the Debentures, and any deferrals, renewals or extensions
of any such indebtedness; provided, however, that the term "indebtedness for
borrowed money" shall not include indebtedness representing money borrowed by
the Company from a Subsidiary; and provided, further, that the term "Senior
Indebtedness" shall not include the Company's 1984-A Series Convertible
Subordinated Debentures, its 1985-A Series Convertible Subordinated Debentures,
its 1982-A Series Convertible Subordinated Debentures, its 1982-B Series
Convertible Subordinated Debentures, its 1982-C Series Convertible Subordinated
Debentures, its 1982-D Series Convertible Subordinated Debentures, its 1983-A
Series Convertible Subordinated Debentures, its 1984-B Series Convertible
Subordinated Debentures, its 1986-A Series Convertible Subordinated Debentures,
its 1987-A Series Convertible Subordinated Debentures, its 1988-A Series
Convertible Subordinated Debentures, its 1988-1 Series Convertible Subordinated
Debentures, its 1989-A Series Convertible Subordinated Debentures, its 1989-1
Series Convertible Subordinated Debentures, its 1989-2 Series Convertible
Subordinated Debentures, its 1990-1 Series Convertible Subordinated Debentures,
its 1990-2 Series Convertible Subordinated Debentures, its 1991-1 Series
Convertible Subordinated Debentures, its 1991-2 Series Convertible Subordinated
Debentures, or its 1992-1 Series Convertible Subordinated Debentures.
1994-1 Series Stock:
The term "1994-1 Series Stock" shall mean the series of the
Company's preferred stock designated "1994- 1 Series Convertible Preferred
Stock," authorized at the date of execution of this Indenture, or any other
class of stock resulting from successive changes or reclassifications of the
1994-1 Series Stock. The 1994-1 Series Stock is convertible into the Common
Stock of the Company.
Subsidiary or Subsidiaries:
The term "Subsidiary" shall mean a corporation of which more
than fifty percent of the issued and outstanding stock entitled to vote for the
election of directors (otherwise than by
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<PAGE> 21
reason of default in dividends) is at the time owned or controlled, directly or
indirectly, by the Company.
Trustee:
The term "Trustee" shall mean Deposit Guaranty National Bank,
a national banking association organized under the laws of the United States
and, subject to the provisions of Article Nine hereof, shall also include its
successors and assigns as Trustee hereunder.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939 as it was in force at the date of execution of this
Indenture and, with respect to each supplemental indenture hereto, as it was in
force at the date of execution of such supplemental indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF DEBENTURES
SECTION 2.01. Designation, Amount and Issue of Debentures.
The Debentures shall be designated as 1994-1 Series Convertible Subordinated
Debentures. Debentures in the aggregate principal amount of $21,312.50 upon
the execution of this Indenture, or from time to time thereafter, may be
executed by the Company and delivered to the Trustee for authentication, and
the Trustee shall thereupon authenticate and deliver said Debentures to or upon
the written order of the Company, signed by its Chairman of the Board,
President or any Vice President and its Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary, without any further action by the Company
hereunder.
Interest on the unpaid principal amount of each Debenture
shall be due and payable on each Interest Payment Date after the Issuance Date
of such Debenture on an annualized basis at the Interest Rate in effect from
time to time during the period or any part thereof as to which interest is
payable on such Interest Payment Date. As soon as practicable after each
Interest Payment Date occurring on or after the date of original issuance, the
Company shall deliver an Officers' Certificate to the Trustee setting forth the
Interest Rate or Interest Rates applicable to the interest payment period
ending on such Interest Payment Date. As soon as practicable after each
Interest Payment Date the Company will mail to the Debentureholders at their
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<PAGE> 22
addresses appearing on the Debenture register notice indicating the Interest
Rate or Interest Rates applicable to the interest payment period ending on such
Interest Payment Date. Interest shall be calculated on the basis of a 365 day
year.
Notwithstanding the foregoing, in no event will interest be
payable on a Debenture to the extent it is in excess of the maximum allowable
interest rate under applicable law. If the interest payable to any holder or
holders of Debentures is to be calculated at a rate lower than the Interest
Rate, the Company shall promptly deliver to the Trustee an Officers'
Certificate certifying to the lower rate and an Opinion of Counsel that such
interest rate is the maximum allowable interest rate under applicable law.
Except as provided in Section 2.06, the aggregate principal
amount of Debentures authorized by this Indenture is limited to the amount set
forth in Section 2.01.
Principal of and interest on the Debentures shall be payable
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
SECTION 2.02. Form of Debentures. The Debentures and the
certificate of authentication to be borne by the Debentures shall be
substantially of the tenor and purport as in this Indenture above recited. Any
of the Debentures may have imprinted thereon such legends or endorsements as
the Board of Directors of the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation, or to conform to usage.
SECTION 2.03. Denomination and Date of Debentures. The
Debentures shall be issuable only as registered Debentures without coupons in
such denominations as the Company shall approve, such approval to be evidenced
by the execution thereof, and shall be numbered, lettered, or otherwise
distinguished in such manner as the Company may deem appropriate and as is not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation, or to conform to usage.
Every Debenture shall be dated the date of its authentication
and shall bear interest from the Issuance Date or from the last Interest
Payment Date to which interest has been paid.
The interest installment on any Debenture which is payable on
any Interest Payment date shall be paid to the person in whose name said
Debenture (or any Debenture or Debentures
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<PAGE> 23
evidencing the same debt) is registered at the close of business on the Record
Date for such interest installment at the address appearing on the Debenture
register or to such other address as that person shall have notified the
Company and the Debenture registrar in writing prior to such Record Date,
except if and to the extent the Company shall default in the payment of the
interest due on such Interest Payment Date, in which case such defaulted
interest shall be paid to the persons in whose names outstanding Debentures are
registered at the close of business on the business day next preceding the date
of payment or at the option of the Company on a subsequent record date (which
shall not be less than five business days preceding the date of payment of
defaulted interest) established for such purpose by notice given by mail by or
on behalf of the Company to the holders of the Debentures not less than fifteen
days preceding such subsequent record date, provided that in the case of any
defaulted interest on a Debenture converted subsequent to a Record Date,
interest shall be paid to the registered holder of the converted Debenture on
the date immediately prior to the Conversion Date. The term "Record Date" as
used in this Indenture with respect to any Interest Payment Date shall mean the
day (whether or not a business day) next preceding such Interest Payment Date.
SECTION 2.04. Execution of Debentures. The Debentures shall
be signed (manually or in facsimile) in the name and on behalf of the Company
by its Chairman of the Board, President or one of its Vice Presidents under its
corporate seal (which may be printed, engraved or otherwise reproduced thereon,
by facsimile or otherwise) attested by the manual or facsimile signature of its
Secretary or one of its Assistant Secretaries. Only such Debentures as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by manual signature by the Trustee, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate upon any Debenture executed by the Company shall be
conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any
of the Debentures shall cease to be such officer before the Debentures so
signed shall have been authenticated and delivered, or disposed of by the
Company, such Debentures nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Debentures had not ceased to
be such officer of the Company; and any Debenture may be signed on behalf of
the Company by such persons as, at the actual date of the execution of such
Debenture, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not as officer.
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<PAGE> 24
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures executed by the
Company to the Trustee for authentication; and the Trustee shall authenticate
and deliver such Debentures as in this Indenture provided and not otherwise.
SECTION 2.05. Registration, Registration of Transfer and
Exchange of Debentures. The Company will keep at the office or agency to be
maintained by the Company as provided in Section 6.02 a register or registers,
in which, subject to such reasonable regulations as it may prescribe, it will
register Debentures and any permitted transfers of Debentures. The Company
shall serve as its own Debenture registrar until such time as another registrar
may be appointed.
Upon surrender for registration of any permitted transfer of
any Debenture at any such office or agency, the Company shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Debenture or Debentures for a like aggregate principal amount
of authorized denominations.
Debentures may be exchanged for a like aggregate principal
amount of other authorized denominations. Debentures to be exchanged shall be
surrendered for that purpose at any office or agency to be maintained for such
purpose by the Company as provided in Section 6.02, and the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor the
Debenture or Debentures which the Debentureholder making the exchange shall be
entitled to receive, bearing serial numbers not contemporaneously outstanding.
All Debentures presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Company or the
Trustee) be duly endorsed by, or be accompanied by instruments of transfer in
form satisfactory to the Company and to the Trustee duly executed by, the
registered holder or his duly authorized attorney.
Any registration of transfer or exchange shall be without
charge, except that the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to register the transfer of
any Debenture not made in accordance with Section 10.06 hereof.
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen
Debentures. In case any temporary or definitive Debenture shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may
execute, and upon its request the Trustee shall
17
<PAGE> 25
authenticate and deliver, a new Debenture, bearing a serial number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture or in lieu of and substitution for the Debenture so destroyed, lost
or stolen. In every case, the applicant for a substituted Debenture shall
furnish to the Company and to the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
to the Trustee evidence to their satisfaction of the destruction, loss or theft
of such Debenture and of the ownership thereof.
The Trustee shall authenticate any such substituted Debenture
and deliver the same upon the written request or authorization of any
Responsible Officer of the Company. Upon the issuance of any substituted
Debenture, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses connected therewith. In case any Debenture which has
matured or is about to mature shall have become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Debenture, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Debenture) if the applicant for such payment shall furnish the
Company, the Trustee and any paying agent with such security or indemnity as
they may require to save each of them harmless and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Debenture and of the ownership thereof.
Every substituted Debenture issued pursuant to the provisions
of this Section 2.06 by virtue of the fact that any Debenture is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debenture shall be found
at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debentures duly issued
hereunder. All debentures shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 2.07. Temporary Debentures. Pending the preparation
of definitive Debentures, the Company may execute and the Trustee shall
authenticate and deliver temporary Debentures. Temporary Debentures shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Debentures but with such omissions, insertions and variations as
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may be appropriate for temporary Debentures, all as may be determined by the
officers of the Company, as evidenced by their execution thereof. Every such
temporary Debenture shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Debentures. Without unreasonable delay, the Company will
execute and deliver to the Trustee definitive Debentures and thereupon any or
all temporary Debentures may be surrendered in exchange therefor, at the
principal office of the Trustee, and the Trustee shall authenticate and deliver
in exchange for such temporary Debentures an equal aggregate principal amount
of definitive Debentures. Such exchange shall be made by the Company at its
own expense and without any charge therefor except that the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge that may be imposed in relation thereto. Until so exchanged, the
temporary Debenture shall in all respects be entitled to the same benefits
under this Indenture as definitive Debentures authenticated and delivered
hereunder.
SECTION 2.08. Cancellation of Debentures. All Debentures
surrendered for the purpose of payment, conversion, exchange or registration of
transfer may, if surrendered to the Company or any paying or conversion agent,
be delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be canceled by it, and no Debentures shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall, upon request of the Company, either deliver canceled Debentures
or a certificate of destruction thereof to the Company.
SECTION 2.09. Benefits of Indenture Provisions. Nothing in
this Indenture or in the Debentures, expressed or implied, shall give or be
construed to give any person, firm or corporation, other then the parties
hereto and any paying agent, any conversion agent and the holders of Debentures
and, to the extent provided in Article Four, the holders of Senior
Indebtedness, any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all the covenants, conditions and provisions contained in this
Indenture or in the Debentures being for the sole benefit of the parties hereto
and any paying agent, any conversion agent and the holders of the Debentures
and, to the extent provided in Article Four, the holders of Senior
Indebtedness.
SECTION 2.10. Maintenance of Office or Agency by Trustee.
The Trustee will maintain an office or agency in Jackson, Mississippi where
Debentures may be presented or
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surrendered for payment of principal and interest or conversion and where
notices and demands to or upon the Company in respect of the Debentures or of
this Indenture may be served, which shall initially be located at One Deposit
Guaranty Plaza, Jackson, Mississippi 39205.
SECTION 2.11. Condition to Issuance of Debentures. The
issuance of any Debenture hereunder upon exercise of a Debenture Option issued
pursuant to the Company's 1988 Long Term Incentive Plan shall be conditioned
upon the execution by the person who receives such Debenture of a written
agreement agreeing that any of the Company's Convertible Preferred Stock
issuable upon conversion of the Debenture shall not be transferable other than
by will or the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Internal Revenue Code of 1986, as
amended, or Title I of the Employee Retirement Income Security Act, or the
rules thereunder. Such agreement may specifically provide that the designation
of a beneficiary shall not constitute a prohibited transfer.
ARTICLE THREE
PREPAYMENT AND REDEMPTION OF DEBENTURES
SECTION 3.01. Mandatory and Optional Prepayment of Debentures.
(a) Upon termination of the conversion privilege of a
particular Debenture pursuant to Section 5.02(a) hereof, the
Company may at its sole option prepay such Debenture at any
time thereafter, if the Company mails notice of prepayment not
less than 30 nor more than 60 days prior to the date fixed for
such prepayment to the Debentureholder at his last registered
address, and the Trustee. Any Debenture which is prepaid
pursuant to this Section 3.01(a) shall cease to bear interest
from the date fixed for prepayment. Notice of prepayment
pursuant to this Section 3.01(a) shall state (i) the
prepayment date, (ii) the prepayment price, (iii) that the
Debentures must be surrendered to the paying agent for payment
and (iv) that interest on the Debentures ceases to accrue on
and after the prepayment date.
(b) Installments of interest which mature on or prior to the
prepayment date shall be payable to the holders of such
Debentures registered as such on the relevant Record Dates
according to their terms and to the provisions of Section 2.03
hereof.
SECTION 3.02. Redemption of Debentures. Providing all other
debentures issued under the Plan are called on an Interest Payment Date the
Debentures are redeemable at the Company's
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option, on that same Interest Payment Date, in whole or in part, upon mailing a
notice of redemption not less than 12 months prior to the date fixed for such
redemption to the holder or holders of the Debentures to be redeemed at such
holder's or holders' last registered addresses.
Each Debenture is redeemable at a redemption price of 100% of
the principal amount thereof, together with accrued interest to the date fixed
for redemption. Installments of interest which mature on or prior to the
redemption date shall be payable to the holders of such Debentures registered
as such on the relevant Record Dates according to their terms and to the
provisions of Section 2.03 hereof. The Debentureholder may convert its
Debenture at any time prior to and on the redemption date, subject to the
limitations on conversion privileges set forth in other provisions of this
Indenture.
At least 12 months but not more than 18 months before a
redemption date, the Company shall mail a notice of redemption by first-class
mail to each holder of the Debentures to be redeemed and to the Trustee. The
notice shall state (i) the redemption date, (ii) the redemption price, (iii) if
less than all outstanding Debentures are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal amounts) of
the Debentures to be redeemed, (iv) that the Debentures called for redemption
may be converted at any time prior to and on the redemption date, (v) the
conditions prerequisite to conversion of Debentures, (vi) that Debentures
called for redemption must be surrendered to the paying agent to collect the
redemption price, and (vii) that interest on the Debentures ceases to accrue on
and after the redemption date. At the Company's request, the Trustee shall
give notice of redemption in the Company's name and at its expense.
Subject to the provisions of Section 3.01 hereof, once notice
of redemption is mailed, the Debentures called for redemption become due and
payable on the redemption date and at the redemption price, and upon surrender
to the paying agent, such Debentures shall be paid at the redemption price,
plus accrued interest to the redemption date.
SECTION 3.03. Deposit of Monies for Redemption or Prepayment.
Prior to any redemption or prepayment date, the Company shall deposit with the
paying agent money sufficient to pay the redemption or prepayment price of and
accrued interest on all Debentures to be redeemed or prepaid. The paying agent
shall return to the Company any money not required for that purpose because of
conversion of Debentures.
If any Debenture called for redemption or prepayment shall not
be so paid upon surrender thereof for redemption or prepayment, the principal
shall, until paid, bear interest from
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the redemption or prepayment date at the Interest Rate borne by the Debenture.
SECTION 3.04. Limitation on Prepayment. Except as provided
in Sections 3.01 and 3.02 hereof, no Debenture may be prepaid or redeemed by
the Company prior to the Due Date without the written consent of the holder
thereof.
SECTION 3.05. Holder's Right to Elect Redemption. Commencing
on the first Interest Payment Date occurring more than one year after the
Issuance Date of any Debenture, the holder of such Debenture or such holder's
legal successor may elect to have the Company redeem the Debenture on any
Interest Payment Date, by surrender of the Debenture to the Company at least 10
days prior to such Interest Payment Date at the office of the Company, or at an
office or agency established for such purpose, duly endorsed or accompanied by
a written instrument of transfer in form satisfactory to the Company and
accompanied by a written notice of election to receive payment of the
Debenture. The amount of such payment shall be equal to the unpaid principal
portion of the Debenture plus accrued but unpaid interest on the Debenture
through the Interest Payment date. The Company shall hand deliver or mail by
first class mail to the Debentureholder a check on the Interest Payment Date in
payment of the amount due in redemption of the Debenture.
ARTICLE FOUR
SUBORDINATION OF DEBENTURES
SECTION 4.01. Agreement That Debentures Be Subordinate. The
Company covenants and agrees, and each holder of a Debenture issued hereunder
by his acceptance thereof likewise covenants and agrees, that all Debentures
issued hereunder shall be issued subject to the provisions of this Article
Four; and each person holding any Debenture, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
SECTION 4.02. Subordination to Senior Indebtedness. Anything
in this Indenture or in any Debenture to the contrary notwithstanding, the
indebtedness evidenced by each Debenture shall be subordinate and junior, to
the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings,
and any receivership, liquidation, reorganization or other
similar proceedings in connection therewith, relative to the
Company or to its creditors, as such, or to its property, and
in the event of any proceedings for voluntary liquidation,
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dissolution, or other winding-up of the Company, whether or
not involving insolvency or bankruptcy, then the holders of
Senior Indebtedness shall be entitled to receive payment is
full of all principal of and interest on all Senior
Indebtedness, or to have provision made for such payment,
before the holders of the Debentures are entitled to receive
any payment on account of principal of or interest on the
Debentures, and to that end (but subject to the power of a
court of competent jurisdiction to make other equitable
provisions reflecting the rights conferred by these
subordination provisions upon the Senior Indebtedness and the
holders thereof with respect to the subordinated indebtedness
represented by the Debentures and the holders thereof by a
lawful plan of reorganization under applicable bankruptcy law)
the holders of Senior Indebtedness shall be entitled to
receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or
property or securities, which may be payable or deliverable in
any such proceedings in respect of the Debentures, except
securities which are subordinate and junior in right or
payment to the payment of all Senior Indebtedness then
outstanding;
(b) If any Senior Indebtedness matures by lapse of time,
acceleration or otherwise, and is not immediately paid,
refunded or replaced by new indebtedness, then all principal
of, (and premium, if any) and interest on all such matured
Senior Indebtedness shall first be paid in full, or such
payment shall be duly provided for, before any payment on
account of principal or interest is made upon, or acquisition
is made of any of, the Debentures;
(c) Each Debentureholder, by his acceptance of a Debenture
issued hereunder (i) irrevocably authorizes and empowers
(without imposing any obligation on) each holder of Senior
Indebtedness (hereinafter in this clause (c) called a "Senior
Holder") at the time outstanding and such Senior Holder's
representatives to demand, sue for, collect, receive and
receipt for such Debentureholder's ratable share of all
payments and distributions in respect of the Debentures which
are required to be paid or delivered to the Senior Holders as
provided in clause (a) above, and to file and prove all claims
therefor and take all such other action (including the right
to vote such Debentureholder's ratable share of the
Debentures) in the name of such Debentureholder or otherwise,
as such Senior Holder or such Senior Holder's representatives
may determine to be necessary or appropriate for the
enforcement of clause (a) above, provided, however, that no
action may be
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taken by any Senior Holder or such Senior Holder's
representatives pursuant to the authorization conferred by
this item (i) of this clause (c) unless written notice shall
have been given by such Senior Holder or such Senior Holder's
representatives to a Debentureholder requesting such
Debentureholder to take such action and such Debentureholder
shall not have taken such action within 15 days after the
giving of such notice; and (ii) agrees to execute and deliver
to each Senior Holder and such Senior Holder's representatives
all such further instruments confirming the above
authorization, and all such powers of attorney, proofs of
claim, assignments of claim and other instruments, and to take
all such other action as may be requested by such Senior
Holder or such Senior Holder's representatives in order to
enable such Senior Holder to enforce all claims upon or in
respect of such Debentureholder's ratable share of the
Debentures.
Notwithstanding any of the foregoing clauses (a) through (c) of this Section
4.02, nothing herein shall prevent the Company from prepaying any Debenture
prior to the Due Date under circumstances when the provisions of clause (a) or
clause (b) of this Section 4.02 shall not be applicable.
SECTION 4.03. Payment to Holders of Senior Indebtedness of
Certain Amounts Received by Debentureholders. In the event that,
notwithstanding the provisions of Section 4.02 prohibiting such distribution or
payment, any distribution of assets of the Company or payment by or on behalf
of the Company of any kind or character, whether in cash, property or
securities, to which the holders of the Debentures or the Trustee would be
entitled but for the provisions of this Article Four prohibiting such
distribution or payment, shall be received by the Trustee or the holders of the
Debentures before the principal of and interest on all Senior Indebtedness is
paid in full, or provision is made for its payment, such distribution or
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of such Senior Indebtedness or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of the Senior Indebtedness held or represented by each, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay the principal of and interest on all such Senior Indebtedness
in full, after giving effect to any concurrent distribution or payment, or
provision therefor, from any source, to the holders of such Senior Indebtedness
or their representatives or trustees.
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SECTION 4.04. Notice to Trustee of Specified Events; Reliance
on Certificate of Liquidating Agent. The Company shall give prompt written
notice to the Trustee of any insolvency or bankruptcy proceeding in respect of
the Company and of any proceedings for voluntary liquidation, dissolution or
other winding up of the Company (whether or not involving insolvency or
bankruptcy), within the meaning of Section 4.02(a), and of any event which
pursuant to Section 4.02(b) would prevent payment by the Company on account of
the principal of or interest on the Debenture. The Trustee, subject to the
provisions of Section 9.01, shall be entitled to assume that no such event has
occurred unless the Company, or a holder of Senior Indebtedness, or any trustee
or representative therefor, has given such notice. The Trustee shall not be
charged with knowledge of the curing of any event or of the elimination of the
act or condition preventing any payment by the Company unless and until the
Trustee shall have received an Officers' Certificate to such effect; and the
Company shall deliver such an Officers' Certificate promptly after the curing
of any such default or the elimination of any such act or condition.
Upon any distribution of assets of the Company or payment by
or on behalf of the Company referred to in this Article Four, the Trustee and
the holders of the Debentures shall be entitled to rely upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 4.02(a) are pending, and the Trustee, subject to
the provisions of Section 9.01 hereof, and the holders of the Debentures shall
be entitled to rely upon a certificate of the liquidating trustee or agent or
other person making any distribution to the Trustee or to the holders of the
Debentures for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Four. In the event that the Trustee determines, in good faith,
that further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Four, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such person, as to the extent to which such person
is entitled to participate in such payment or distribution, and as to other
facts pertinent to the rights of such person under this Article Four, and if
such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to receive
such payment.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness but shall
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have only such obligations to such holders as are expressly set forth in this
Article Four.
SECTION 4.05. Subrogation. Subject to the payment in full of
the principal of and interest on all Senior Indebtedness, the holders of the
Debentures (together with the holders of any other indebtedness of the Company
which is subordinate in right of payment to the payment of other indebtedness
of the Company, but is not subordinate in right of payment to the Debentures
and by its terms grants such right of subrogation to the holders thereof) shall
be subrogated to the rights of the holders of Senior Indebtedness to receive
distributions of assets of the Company, or payments by or on behalf of the
Company, made on the Senior Indebtedness, until the principal of and interest
on the Debentures shall be paid in full; and, for the purpose of such
subrogation, no distributions or payments to the holders of Senior Indebtedness
of any cash, property or securities to which the holders of the Debentures or
the Trustee would be entitled except for the provisions of this Article Four,
and no payment over pursuant to the provisions of this Article Four to the
holders of Senior Indebtedness by the holders of the Debentures or the Trustee
shall, as between the Company, its creditors other than the holders of Senior
Indebtedness and the holders of Debentures, be deemed to be a payment by the
Company to or on account of Senior Indebtedness, it being understood that the
provisions of this Article Four are, and are intended, solely for the purpose
of defining the relative rights of the holders of the Debentures, on the one
hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 4.06. Obligation to Pay Not Impaired. Nothing
contained in this Article Four or elsewhere in this Indenture, or in the
Debentures, is intended to or shall alter or impair, as between the Company,
its creditors other than the holders of Senior Indebtedness, and the holders of
the Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures the principal of and
interest on the Debentures at the time and place and at the rate and in the
currency therein prescribed, or to affect the relative rights of the holders of
the Debentures and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Four of the holders of Senior Indebtedness to receive
cash, property or securities otherwise payable or deliverable to the holders of
the Debentures.
SECTION 4.07. Reliance by Senior Indebtedness on
Subordination Provisions. Each holder of any Debenture by his acceptance
thereof acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an
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inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Debentures, to acquire and continue to hold, or to continue to
hold, such Senior Indebtedness, and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness.
SECTION 4.08. Certain Payments and Credits Permitted.
Nothing contained in this Article Four or elsewhere in this Indenture, or in
any of the Debentures, shall (a) affect the right of the Company to make or
prevent the Company from making payment of the principal of or interest on the
Debentures, or from depositing with the Trustee or any paying agent monies for
such payments, not then contrary to the conditions described in Section 4.02,
(b) prevent the application by the Trustee or any paying agent of any monies so
deposited with it under this Indenture to the payment of or on account of the
principal of or interest on the Debentures unless the Trustee has knowledge of
a default on the Senior Indebtedness, or (c) prevent the retention by the
holders of Debentures of monies so applied and paid to them on account of the
principal of or interest on the Debentures, whether or not at the time of such
application described in (b) or payment described in (c) payment of principal
of or interest on the Debentures would then be precluded pursuant to Section
4.02.
SECTION 4.09. Subordination Not to be Prejudiced by Certain
Acts. No right of any present or future holder of any Senior Indebtedness of
the Company to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
SECTION 4.10. Trustee Authorized to Effectuate
Subordination. Each holder of Debentures by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination as provided in
this Article Four and appoints the Trustee his attorney-in-fact for any and all
such purposes.
SECTION 4.11. Trustee's Rights Regarding Senior
Indebtedness Held By It, Etc. The Trustee shall be entitled to all the rights
set forth in this Article Four in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in Section 9.13 or elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article Four
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shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 9.06 of this Indenture.
SECTION 4.12. Trustee and Paying Agents Not Chargeable with
Knowledge Until Notice. Notwithstanding any of the provisions of this Article
Four or any other provision of this Indenture, the Trustee and any paying agent
shall not at any time be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee
or any paying agent, unless and until the Trustee or such paying agent, as the
case may be, shall have received written notice thereof from the Company or a
holder of Senior Indebtedness, or any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 9.01, and any paying agent shall be entitled to assume that no such
facts exist. If at lease twenty-four hours prior to the date upon which by the
terms hereof any such monies may become payable for any purpose (including,
without limitations, the payment of either the principal of or the interest on
any Debenture) the Trustee or paying agent, as the case may be, shall not have
received with respect to such monies the notice provided for in this Section
4.12, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary which may be received by it on or after the
commencement of such twenty-four hour period.
SECTION 4.13. 1984-A, 1985-A, 1986-A, 1982-A, 1982-B, 1982-C,
1982-D, 1983-A, 1984-B, 1987-A, 1988-A, 1988-1, 1989-A, 1989-1, 1989-2, 1990-1,
1990-2, 1991-1, 1991-2 Series and 1992-1 Series Convertible Subordinated
Debentures. Anything in this Indenture or in the Debentures to the contrary
notwithstanding, the Debentures shall be neither subordinate nor superior in
right of payment to the 1984-A Series Convertible Subordinated Debentures due
1994, issued by the Company under an Indenture dated as of August 17, 1984, or
the 1985-A Series Convertible Subordinated Debentures due 1995, issued by the
Company under an Indenture dated as of August 13, 1985, or the 1986-A Series
Convertible Subordinated Debentures due 1996, issued by the Company under an
Indenture dated as of August 11, 1986, or the 1982-A, 1982-B, 1982-C, 1982-D,
1983-A, 1984-B and 1987-A Series Convertible Subordinated Debentures due 1997,
issued by the Company under an Indenture dated as of August 10, 1987, the
1988-A Series Convertible Subordinated Debentures due 1998, issued by the
Company under an Indenture dated August 30, 1988, the 1988-1 Series Convertible
Subordinated Debentures due 1998, issued by the Company under an Indenture
dated November 29, 1988, the 1989-A Series Convertible Subordinated Debentures
due 1999, issued by the Company under an Indenture dated August 22, 1989, or
the 1989-1 Series Convertible Subordinated Debentures due 1999, issued by the
Company under an Indenture dated August 22, 1989, or the 1989-2
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Series Convertible Subordinated Debentures due 1999, issued by the Company
under an Indenture dated November 10, 1989, or the 1990-1 Series Convertible
Subordinated Debentures due 2000, issued by the Company under an Indenture
dated August 27, 1990, or the 1990-2 Series Convertible Subordinated Debentures
due 2000, issued by the Company under an Indenture dated November 9, 1990, or
the 1991-1 Series Convertible Subordinated Debentures due 2001, issued by the
Company under an Indenture dated August 27, 1991, the 1991-2 Series Convertible
Subordinated Debentures due 2001, issued by the Company under an Indenture
dated November 15, 1991 or the 1992-1 Series Convertible Subordinated
Debentures due 2002, issued by the Company under an Indenture dated November
13, 1992, but shall rank pari passu in all respects with such 1984-A, 1985-A,
1986-A, 1982-A, 1982-B, 1982-C, 1982-D, 1983-A, 1984-B, 1987-A, 1988-A, 1988-1,
1989-A, 1989-1, 1989-2, 1990-1, 1990-2, 1991-1 and 1991-2 Series Convertible
Subordinated Debentures.
ARTICLE FIVE
CONVERSION OF DEBENTURES
SECTION 5.01. Conversion Privilege; Conversion Price.
Subject to and upon compliance with the provisions of this Article Five, at the
option of the holder thereof, any Debenture or portion thereof may, at any time
more than six months after the date of the award of the debenture option
pursuant to which the Debenture was purchased and at or before the close of
business on the Due Date (or, in case such Debenture shall be called for
redemption prior to the Due Date and the Company does not default in timely
payment of the redemption price, then until the close of business on the date
fixed for redemption) be converted at the principal amount thereof, or of such
portion thereof, into fully paid and nonassessable whole shares of 1994-1
Series Stock, at the conversion price of $21.3125 per share (the "conversion
price"). The conversion price shall not be subject to adjustment. Rights with
respect to fractional share interests shall be governed by Section 5.04.
SECTION 5.02. Conversion Period; Limitation on Exercise.
The conversion privilege set forth in Section 5.01 shall also be limited as
described below.
(a) Pledge of Debentures. At any time that a Debenture
is pledged or otherwise hypothecated as collateral for a loan
to any person, the conversion privilege for that Debenture may
not be exercised by any person. If such pledge or
hypothecation is not made in compliance with Section 10.06
hereof, the conversion privilege for such Debenture shall
simultaneously with such pledge or hypothecation wholly and
permanently terminate. As soon as practicable, the Company
shall give notice to the
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Trustee and any conversion agent of such prohibited pledge or
hypothecation. If such pledge or hypothecation is made in
compliance with Section 10.06, the conversion privilege for
that Debenture shall be exercisable upon receipt by the
Company, the Trustee and the conversion agent from the
Debentureholder and the person to whom the Debenture has been
pledged or hypothecated of notice satisfactory to the Company
that the pledge or hypothecation has been fully and completely
discharged and released and no pledge or hypothecation of the
Debenture has been substituted or has otherwise been created.
If such pledge or hypothecation is made in compliance with
Section 10.06 and the Debenture is transferred to a person
foreclosing on such Debenture, the conversion privilege for
such Debenture shall simultaneously with such foreclosure
wholly and permanently terminate. Unless and until the
Trustee and the conversion agent shall have received notice in
writing of a prohibited pledge or hypothecation of the
Debenture or a foreclosure, the Trustee and conversion agent
shall be entitled in all respects to conclusively assume that
no such pledge, hypothecation or foreclosure has taken place.
(b) Suspension Pending Listing and/or Registration. Anything
herein to the contrary notwithstanding, if at any time the
Board of Directors determines, in its discretion, that the
listing, registration, or qualification upon any securities
exchange or under any state or Federal law of 1994-1 Series
Stock into which the Debentures are convertible or of Common
Stock into which the 1994-1 Series Stock is convertible, or
that the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition of, or in
connection with, the issue of such shares, (1) the Company
will in good faith and at its own expense as expeditiously as
possible endeavor to secure such listing, registration,
qualification, consent or approval, or take such other action,
as the case may be, and (2) the conversion privilege of the
Debentures may not be exercised in whole or in part until such
listing, registration, qualification, consent or approval
shall have been effected or obtained and the same shall have
been free of any conditions not acceptable to the Board of
Directors.
In the case of any suspension of the conversion privilege
pursuant to this Section 5.02(b) that occurs or will continue after the
Debentures first become convertible, the Company shall promptly deliver to the
Trustee and the conversion agent an Officers' Certificate stating that such
suspension has occurred and the reason therefor and shall promptly mail notice
of
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such suspension and the reason therefor to the holders of the Debentures at
their addresses as they appear on the Debenture register. Upon termination of
any such suspension, the Company shall promptly deliver to the Trustee and the
conversion agent an Officers' Certificate stating that such suspension has
terminated and shall promptly mail notice thereof to the holders of the
Debentures at their addresses as they appear on the Debenture register.
(c) Effect of Suspension. Suspension of the right to
exercise the conversion privilege shall not reduce any other
rights under a Debenture.
SECTION 5.03. Manner of Exercising Conversion Privilege.
In order to exercise the conversion privilege, the holder of any Debenture to
be converted shall surrender such Debenture to the Company at any office or
agency maintained for that purpose pursuant to Section 2.10 or 6.02,
accompanied by written notice to the Company at such office or agency that the
holder elects to convert such Debenture or a specified portion thereof.
Debentures surrendered for conversion shall, if so required by the Company or
the Trustee, be duly endorsed by, or accompanied by instruments of transfer in
form satisfactory to the Company duly executed by, the registered holder or his
duly authorized attorney. As promptly as practicable after the receipt of such
notice and the surrender of such Debenture as aforesaid, the Company shall
issue and shall deliver, at the office or agency at which such Debenture is
surrendered or such other place as the holder designates in writing, to such
holder (or, on his written order, in his name and for his benefit to some other
person), a certificate or certificates for the number of shares of 1994-1
Series Stock issuable upon the conversion of such Debenture (or specified
portion thereof), and a check in lieu of any fractional interest in accordance
with the provisions of this Article Five. Such conversion shall be deemed to
have been effected on the Conversion Date and at such time the rights of the
holder of such Debenture as such Debentureholder shall cease and the person or
persons in whose name or names any certificate or certificates for shares of
1994-1 Series Stock shall be issuable upon such conversion shall be deemed to
have become the holder or holders of record of the shares represented thereby.
In the case of any Debenture which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the holder thereof, at the
expense of the Company, a new Debenture or Debentures of authorized
denominations in principal amount equal to the unconverted portion of such
Debenture. The conversion privilege of the Debenture converted in part shall
apply to such new Debenture or Debentures. No partial conversion will be
permitted if, following conversion, the remaining principal amount of the
Debenture would be less than $1,000.00.
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Interest will accrue on Debentures through the day immediately
preceding the date of conversion and will be paid to the holder of the
Debenture (or, on his written order, in his name and for his benefit to some
other person) when his shares of 1992-1 Series Stock are delivered.
SECTION 5.04. Fractional Shares. Shares of 1994-1 Series
Stock shall be issued upon conversion of Debentures in whole shares only. If
more than one Debenture shall be surrendered for conversion at one time by the
same holder, the number of shares which shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the Debentures
(or specified portions thereof to the extent permitted hereby) so surrendered.
If any fractional interest in a share would be deliverable upon conversion of
any Debenture, the Company shall make an adjustment therefor by payment in the
form of a check or cash equal in amount to the product obtained by multiplying
the conversion price per share times such fractional interest.
SECTION 5.05. Notice of Certain Corporate Action. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its 1994-1 Series Stock or its Common Stock
payable otherwise than in cash or other property out of its
retained earnings; or
(b) the Company shall authorize the granting to the holders
of its 1994-1 Series Stock or its Common Stock of rights to
subscribe for or purchase any shares of capital stock of any
class or of any other rights; or
(c) the Company shall authorize any reclassification of
the 1992-1 Series Stock or the Common Stock of the Company
(other than a subdivision or combination of its outstanding
shares of Common Stock), or any consolidation or merger to
which the Company is a party and for which approval of any
stockholders of the Company is required, or the sale or
transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed at the office or offices or agency or
agencies maintained for the purpose of conversion of Debentures pursuant to
Section 2.10 and 6.02, and shall cause to be mailed to the Trustee and to
holders of Debentures, at their last addresses as they shall appear upon the
register provided for in Section 2.05, at least 20 days (or 10 days in any case
specified in clause (a) or (b) above) prior to the applicable
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record date hereinafter specified, a notice stating (i) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of its 1994-1 Series Stock or Common Stock, as the case may be, which are to be
entitled to such dividend, distribution, rights or warrants are to be
determined, or (ii) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that record holders
of 1994-1 Series Stock or Common Stock, as the case may be, shall be entitled
to exchange their shares of 1994-1 Series Stock or Common Stock for securities,
cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up. Failure to
give notice or any defect therein shall not affect the legality or validity of
any dividend, distribution, right, redistribution, charge, consolidation,
merger, sale, or transfer. The Trustee shall have no duties with respect to
any notice provided or given to it pursuant to this Section 5.05, except to
exhibit the same to Debentureholders upon request.
SECTION 5.06. Company to Reserve Stock. The Company shall at
all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued 1994-1 Series Stock, for the purpose of effecting the
conversion of Debentures, the maximum number of shares of 1994-1 Series Stock
then issuable upon the conversion of all outstanding Debentures, and if at any
time the number of authorized but unissued shares of 1994-1 Series Stock shall
not be sufficient to effect such conversions the Company will take such
corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of 1994-1 Series Stock to such
number of shares as shall be sufficient for such purpose.
SECTION 5.07. Taxes on Conversions. The Company will pay
any and all taxes (other than any income taxes) that may be payable in respect
of the issue or delivery of shares of 1994-1 Series Stock on conversion of
Debentures pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of 1994-1 Series Stock in a name other than that of the
holder of the Debenture or Debentures to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax or has established, to the
satisfaction of the Company, that such tax has been paid.
SECTION 5.08. Covenant as to Stock. The Company covenants
that all shares of 1994-1 Series Stock which may be issued upon conversion of
Debentures, and all shares of Common Stock which may be issuable upon
conversion of 1994-1 Series
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Stock, will upon issue be duly and validly issued and fully paid and
nonassessable and free from all taxes, liens and charges with respect to the
issue thereof.
SECTION 5.09. Provision in Case of Consolidation, Merger or
Sale. In case of any consolidation of the Company with, or merger of the
Company into, any other corporation or the merger of any other corporation into
the Company (other than a merger in which the Company is the continuing
corporation and in which no change is made in the outstanding 1994-1 Series
Stock of the Company), or in case of any sale or transfer of all or
substantially all of the assets of the Company, the corporation formed by such
consolidation or the corporation which shall have acquired such assets or the
Company (if another corporation shall have merged into the Company) as the case
may be (the "Surviving Corporation"), shall execute and deliver to the Trustee
a supplemental indenture providing that the holder of each Debenture then
outstanding shall have the right thereafter (until the expiration of the
conversion right of such Debenture) to convert such Debenture into the kind and
amount of shares of stock, other securities, cash or other property receivable
upon such consolidation, merger, sale or transfer by a holder of the number of
shares of 1994-1 Series Stock of the Company into which such Debenture might
have been converted immediately prior to such consolidation, merger, sale or
transfer. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers. Notice of the
execution of any such supplemental indenture shall be mailed by the Company at
its cost and expense to the holders of the Debentures as soon as practicable
after the execution of such supplemental indenture. Failure to give such
notice, or any defects therein, shall not affect the legality or validity of
any supplemental indenture.
SECTION 5.10. Trustee's Disclaimer of Responsibility for
Certain Matters. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of
any shares of 1994-1 Series Stock, or of any securities or property, which may
at any time be issued or delivered upon the conversion of any Debenture; and
neither the Trustee nor any conversion agent makes any representation with
respect thereto. Subject to the provisions of Section 9.01, neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to issue, register or deliver any shares of 1994-1 Series Stock or
stock certificates or other securities or property upon the surrender of any
Debenture for the purpose of conversion or to comply with any of the covenants
of the Company contained in this Article Five. Neither the Trustee nor the
conversion agent has any duty to determine whether any provisions of a
supplemental indenture pursuant to Section 5.09 are correct.
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SECTION 5.11. Covenant as to Conversion Rights. The
Company covenants and agrees that so long as any of the Debentures are
outstanding, it will not amend its Certificate of Incorporation in any way
which would adversely change the conversion rights of the 1994-1 Series Stock
unless such amendment shall have been approved in writing by the holders of not
less than sixty-six and two-thirds percent of all shares of 1994-1 Series Stock
at the time outstanding and by the holders of not less than sixty-six and
two-thirds percent of the aggregate principal amount of the Debentures at the
time outstanding.
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01. Payment of Principal and Interest. The
Company covenants and agrees that it will duly and punctually pay or cause to
be paid the principal of and interest on each of the Debentures at the time and
place and in the manner provided in the Debentures to or upon the written order
of the holders thereof.
SECTION 6.02. Office for Notices, Payments and Conversions.
The Company covenants and agrees, so long as any of the Debentures remain
outstanding, to maintain in Jackson, Mississippi, one or more offices or
agencies where the Debentures may be presented for payment of principal and
interest, for registration of transfer or exchange or for conversion and an
office or agency where notices and demands to or upon the Company in respect of
the Debentures or of this Indenture may be served. The Company will give to
the Trustee notice of the location of any such offices or agencies and of any
change of location thereof. In case the Company shall fail to maintain such
office or agency or shall fail to give such notice of the location or of any
change in the location thereof, presentations and demands may be made and
notices may be served at the principal office of the Trustee.
SECTION 6.03. Paying Agents.
(a) Whenever the Company shall have one or more paying
agents, it will, prior to each due date of the principal of or
interest on any Debentures, deposit with such paying agent a
sum sufficient to pay the principal or interest so becoming
due. The Company will promptly notify the Trustee of its
action or failure so to act.
(b) Any paying agent appointed by the Company, other than
the Trustee, shall be a bank or trust company of the character
and with the qualifications set forth in Section 9.09, and the
Company covenants and agrees to cause such paying agent to
execute and deliver to the Trustee an instrument in which it
shall agree with the Trustee, subject to the provisions of
this Section, (1)
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that such paying agent shall hold in trust for the benefit of
the Debentureholders all sums held by such paying agent for
the payment of the principal of or interest on any of the
Debentures, (2) that such paying agent shall give to the
Trustee notice of any failure by the Company (or any other
obligor on the Debentures) to make any payment of the
principal of or interest on the Debentures when the same shall
be due and payable, and (3) at any time during the continuance
of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such
paying agent.
(c) If the Company shall at any time act as its own
paying agent, then on or before each due date of the principal
of or interest on any of the Debentures, it will set aside and
segregate and hold in trust for the benefit of the holders of
the Debentures a sum sufficient to pay such principal or
interest so becoming due, and will notify the Trustee of its
action or of any failure to take such action.
(d) Anything in this Section 6.03 to the contrary
notwithstanding, the Company may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay or cause to be paid to the
Trustee all sums held in trust by it or any paying agent as
required by this Section, such sums to be held by the Trustee
upon the trusts herein contained.
(e) Anything in this Section 6.03 to the contrary
notwithstanding, the agreement to hold sums in trust as
provided in this Section is subject to the provisions of
Sections 14.03 and 14.04 hereof.
SECTION 6.04. Appointment to Fill a Vacancy in Office of
Trustee. The Company, whenever necessary to avoid or fill a vacancy in the
Office of Trustee, will appoint, in the manner provided in Section 9.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 6.05. Further Instruments and Acts. The Company
will, upon request of the Trustee, execute and deliver such further instruments
and do such further acts as may reasonably be necessary or proper to carry out
more effectually the purposes of this Indenture.
SECTION 6.06. Payment of Taxes; Maintenance of Corporate
Existence; Maintenance of Properties; Property Insurance.
(a) The Company will, and will cause each Subsidiary to,
pay all taxes, assessments and governmental charges
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lawfully levied or assessed upon it, upon its property or any
part thereof, or upon its income or profits, or any part
thereof, before the same shall become delinquent, and will
duly observe and conform to all lawful requirements of any
governmental authority relative to any of its property, and
all covenants, terms and conditions upon or under which any of
its property is held; and within four months after the
accruing of any lawful claims or demands for labor, materials,
supplies or other objects, which might become a lien or charge
upon any of its property or the income therefrom, it will pay
or cause to be discharged or make adequate provision to
satisfy and discharge the same; provided that nothing in this
Section 6.06 or elsewhere in this Indenture contained shall
require the Company to observe or conform to any requirements
of any governmental authority or to cause to be paid or
discharged, or to make provision for, any such lien or charge
or to pay any such tax, assessment or governmental charge so
long as the validity thereof shall be contested in good faith;
and provided further that neither the Company nor any
Subsidiary shall be required to pay any such taxes,
assessments or charges, if, in the judgment of the Board of
Directors of the Company or such Subsidiary, such payment
shall no longer be advantageous to the Company or such
Subsidiary in the conduct of its business and nonpayment shall
not be disadvantageous in any material respect to the
Debentureholders.
(b) Subject to the other provisions of this Indenture, the
Company will, and will cause each Subsidiary to, maintain its
corporate existence and right to carry on its business and
duly procure all necessary renewals and extensions thereof and
use its best efforts to maintain, preserve and renew all such
rights, powers, privileges and franchises; provided, however,
that nothing herein contained shall be construed to prevent
the Company or Subsidiary from ceasing or omitting to exercise
any right, power, privilege or franchise (including, in the
case of a Subsidiary, the corporate existence thereof) which
in the judgment of the Board of Directors of the Company or of
such Subsidiary should not be exercised and which is not
advantageous in any material respect to the Debentureholders.
(c) The Company will, and will cause each Subsidiary to,
keep and maintain all buildings, plants and other property
owned or leased by it in such good condition, repair and
working order and supplied with all such necessary equipment
as in the judgment of the Company may be necessary, so that
the business carried on in connection therewith may be
properly and advantageously
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conducted at all times; provided, however, that nothing in
this Section 6.06 shall prevent the Company or a Subsidiary
from selling, abandoning or otherwise disposing of any
building, plant or property whenever in the opinion of the
Company the retention thereof is inadvisable or not necessary
to the business of the Company or such Subsidiary.
(d) The Company will insure and keep insured, and will
cause each Subsidiary to insure and keep insured, to a
reasonable amount with reputable insurance companies, to the
extent such insurance is reasonably available, so much of
their respective properties as companies engaged in a similar
business and to the extent such companies in accordance with
good business practice customarily insure properties of a
similar character against loss by fire and the extended
coverage perils and other hazards.
SECTION 6.07. Annual Review Certificate. The Company
covenants and agrees to deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company ending after
the date hereof, an Officers' Certificate, which shall conform to the
provisions of Section 16.06, stating that a review of the activities of the
Company and of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such officer signing such
certificate, that to the best of his knowledge the Company has kept, observed,
performed and fulfilled each and every such covenant in this Indenture
contained and is not in default in the performance and observance of any of the
terms, provisions and conditions hereof (or, if the Company shall be in
default, specifying all such defaults and the nature thereof of which he may
have knowledge) and that to the best of his knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest on the Debentures is prohibited.
SECTION 6.08. No Lien Created. This Indenture and the
Debentures do not create a lien, charge, or encumbrance on any property of the
Company or any Subsidiary.
ARTICLE SEVEN
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 7.01. Debentureholders' Lists. The Company
covenants and agrees that it will furnish or cause to be furnished to the
Trustee not more than 30 or less than 15 calendar days before an Interest
Payment Date in each year and at such other
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times as the Trustee may request in writing, within thirty days after receipt
by the Company of any such request, a list in such form as the Trustee may
reasonably require containing all information in the possession or control of
the Company, and of any paying agents of the Company other than the Trustee, as
to the names and addresses of the holders of Debentures obtained (in the case
of each list other than the first list) since the date as of which the next
previous list, if any, was furnished. Any such list may be dated as of a date
not more than fifteen days prior to the time such information is furnished or
caused to be furnished, and need not include information received after such
date, but the list need not be furnished if the Trustee is the Debenture
registrar.
SECTION 7.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and
addresses of the holders of Debentures (1) contained in the
most recent list furnished to it as provided in Section 7.01
and (2) received by it in the capacity of Debenture registrar
(if so acting) hereunder.
The Trustee may (1) destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so
furnished, (2) destroy any information received by it as
paying agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than forty-five days after an
Interest Payment Date, a list containing the names and
addresses of the holders of Debentures obtained from such
information since the delivery of the next previous list, if
any, and (3) destroy any list delivered to itself as Trustee
which was compiled from information received by it as paying
agent (if so acting) hereunder upon the receipt of a new list
so delivered.
(b) In case three or more holders of Debentures
(hereinafter referred to as "applicants") apply in writing to
the Trustee and furnish to the Trustee reasonable proof that
each such applicant has owned a Debenture for a period of at
least six months preceding the date of such application, and
such application states that the applicants desire to
communicate with other holders of Debentures with respect to
their rights under this Indenture or under the Debentures and
is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then
the Trustee shall, within five business days after the receipt
of such application, at its election, either
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(1) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of
this Section 7.02, or
(2) inform such applicants as to the approximate
number of holders of Debentures whose names and
addresses appear in the information preserved at the
time by the Trustee in accordance with the provisions
of subsection (a) of this Section 7.02, and as to the
approximate cost of mailing to such Debentureholders
the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Debentureholder whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 7.02, a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Securities and Exchange Commission, together with
a copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best
interests of the holders of Debentures or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order sustaining one or more of
such objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after the entry of such order and
the renewal of such tender; if no such order is entered by said Commission, the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every holder of the Debentures, by receiving
and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee
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nor any paying agent shall be held accountable by reason of
the disclosure of any such information as to the names and
addresses of the holders of Debentures in accordance with the
provisions of subsection (b) of this Section 7.02, regardless
of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under said
subsection (b).
SECTION 7.03. Reports by the Company.
(a) The Company covenants and agrees to file with the
Trustee, within fifteen days after the Company is required to
file the same with the Securities and Exchange Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as said Commission may from time to time by rules
and regulations prescribe) which the Company may be required
to file with said Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with
the Trustee and said Commission, in accordance with rules and
regulations prescribed from time to time by said Commission,
such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Securities and Exchange Commission, in
accordance with the rules and regulations prescribed from time
to time by said Commission, any additional information,
documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules
and regulations.
(c) The Company covenants and agrees to transmit by mail
to all holders of Debentures, as the names and addresses of
such holders appear upon the registry books of the Company,
within thirty days after the filing thereof with the Trustee,
such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections
(a) and (b) of this Section 7.03 as may be required by rules
and
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regulations prescribed from time to time by the Securities and
Exchange Commission, except insofar as such summaries,
documents or reports have previously been furnished to such
Debentureholder.
(d) The Company covenants and agrees to transmit by mail
to all holders of Debentures, as the names and addresses of
such holders appear on the registry books of the Company, and
to furnish to the Trustee annually within 120 days after the
end of each fiscal year of the Company, beginning with the
fiscal year ending June 30, 1988, a copy of the consolidated
balance sheet of the Company and its consolidated subsidiaries
as at the end of its annual accounting period and a
consolidated profit and loss statement of the Company and its
consolidated subsidiaries for such period, prepared in
accordance with generally accepted accounting principles and
accompanied by the certificate of a firm of independent public
accountants.
SECTION 7.04. Reports by the Trustee.
(a) If this Indenture has been qualified under the Trust
Indenture Act of 1939, then on or before July 15 in every year
thereafter, so long as any Debentures are outstanding
hereunder, the Trustee shall transmit to the Debentureholders
as hereinafter in this Section 7.04 provided, a brief report
dated as of May 15 of the year in which such report is made
with respect to:
(1) its eligibility under Section 9.09, and its
qualification under Section 9.08, or in lieu thereof,
if to the best of its knowledge it has continued to
be eligible and qualified under such Sections, a
written statement to such effect;
(2) the character and amount of any advances (and
if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee
(as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims
or may claim a lien or charge prior to that of the
Debentures, on any property or funds held or
collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to state such
advances if such advances so remaining unpaid
aggregate not more than one-half of one per cent of
the principal amount of the Debentures outstanding on
the date of such report;
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(3) the amount, interest rate, and maturity date
of all other indebtedness owing by the Company (or by
any other obligor on the Debentures) to the Trustee
in its individual capacity, on the date of such
report, with a brief description of any property held
as collateral security therefor, except an
indebtedness based upon a creditor relationship
arising in any manner described in paragraphs (2),
(3), (4) or (6) of subsection (b) of Section 9.13;
(4) the property and funds, if any, physically in
the possession of the Trustee, as such, on the date
of such report; and
(5) any action taken by the Trustee in the
performance if its duties under this Indenture which
it has not previously reported and which in its
opinion materially affects the Debentures, except
action in respect of a default, notice of which has
been or is to be withheld by it in accordance with
the provisions of Section 8.08.
(b) If this Indenture has been qualified under the Trust
Indenture Act of 1939, the Trustee shall transmit to the
Debentureholders, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such), since the
date of the last report transmitted pursuant to the provisions
of subsection (a) of this Section 7.04 (or if no such report
has yet been so transmitted, since the date of execution of
this Indenture), for the reimbursement of which it claims or
may claim a lien or charge prior to that of the Debentures on
property or funds held or collected by it as Trustee, and
which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining
unpaid at any time aggregate ten per cent or less of the
principal amount of Debentures outstanding at such time, such
report to be transmitted within ninety days after such time.
(c) Reports pursuant to this Section 7.04 shall be
transmitted by mail to all holders of Debentures, as the names
and addresses of such holders appear upon the registry books
of the Company.
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(d) A copy of any such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with
each stock exchange upon which the Debentures are listed and
also with the Securities and Exchange Commission. The Company
will notify the Trustee when the Debentures are listed on any
stock exchange.
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 8.01. Event of Default. In case one or more of the
following Events of Default shall have occurred and be continuing, that is to
say:
(a) default in the payment of any installment of interest
upon any of the Debentures as and when the same shall become
due and payable, whether or not such payment is prohibited by
the provisions of Article Four, and continuance of such
default for a period of thirty days; or
(b) default in the payment of the principal of any of the
Debentures as and when the same shall become due and payable
either at maturity, by declaration or otherwise, and in each
case whether or not such payment is prohibited by the
provisions of Article Four; or
(c) failure on the part of the Company duly to observe or
perform any other of its covenants or agreements contained in
the Debentures or in this Indenture for a period of sixty days
after the date on which written notice of such failure,
specifying such default and requiring the same to be remedied,
shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least twenty-five
per cent in principal amount of the Debentures at the time
outstanding; or
(d) an event of default as defined in any indenture or
instrument evidencing or under which the Company has at the
date of this Indenture or shall hereafter have outstanding any
indebtedness for money borrowed by the Company shall have
happened and shall be continuing and such indebtedness shall
have been accelerated so that the same shall be or become due
and payable prior to the date on which the same would
otherwise become due and payable, and such acceleration shall
not be contested in good faith by the Company, and such
acceleration shall
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not be rescinded or annulled, or such indebtedness shall not
have been discharged, or there shall not have been deposited
in trust a sum of money sufficient to discharge in full such
indebtedness, within ten days after written notice of such
acceleration to the Company from the Trustee or to the Company
and the Trustee from the holders of not less than twenty-five
per cent in aggregate principal amount of the Debentures then
outstanding hereunder; provided, however, that if such event
of default under such indenture or instrument shall be
remedied or cured by the Company or be waived by the holders
of such indebtedness in any manner authorized by such
indenture or instrument or shall otherwise cease to exist,
then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the
Trustee or any of the Debentureholders; and provided further
that the Trustee, subject to Section 9.01, shall not be
charged with knowledge of any such default unless written
notice of such default shall have been given to the Trustee by
the Company, by the Trustee then acting under any indenture or
other instrument under which such default shall have occurred,
or by the holders of at least five per cent in aggregate
principal amount of the Debentures at the time outstanding; or
(e) the entry of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Company
in an involuntary case under the Federal Bankruptcy Code or
any other applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial
part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of sixty
consecutive days; or
(f) the commencement by the Company of a voluntary case
under the Federal Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by the Company to
the entry of an order for relief in an involuntary case under
any such law, or the consent by the Company to the appointment
of or taking possession by a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company
or of any substantial part of its property, or the making
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by the Company of an assignment for the benefit of creditors;
then and in each and every such case, unless the principal of all of the
Debentures shall have already become due and payable, either the Trustee or the
holders of not less than twenty-five per cent in aggregate principal amount of
the Debentures then outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by Debentureholders), may declare the principal of
all the Debentures to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
notwithstanding anything to the contrary contained in this Indenture or in the
Debentures. This provision, however, is subject to the condition that if at
any time after the principal of the Debentures shall have been so declared due
and payable, and before any judgment or decree for the payment of the monies
due shall have been obtained or entered as hereinafter provided, the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all of the Debentures and the principal of any
and all Debentures which shall have become due otherwise than by acceleration
(with interest on such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, at the rate borne by the Debentures, through the day preceding the
date of such payment or deposit) and such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred and all advances made
by the Trustee, except as the result of its negligence or bad faith, and any
and all defaults under this Indenture, other than the nonpayment of principal
and accrued interest on Debentures which shall have become due by acceleration,
shall have been remedied -- then and in every such case the holders of a
majority in aggregate principal amount of the Debentures then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every case,
subject to any determination in such proceeding, the Company, the Trustee and
the Debentureholders shall be restored respectively to their several positions
and rights hereunder, and thereafter all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceeding had been
taken.
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SECTION 8.02. Payment of Debentures on Default; Suit
Therefor. The Company covenants that (1) in case default shall be made in the
payment of any installment of interest upon any of the Debentures as and when
the same shall become due and payable, and such default shall have continued
for a period of thirty days, or (2) in case default shall be made in the
payment of the principal of any of the Debentures as and when the same shall
have become due and payable, whether at maturity of the Debentures or upon
redemption or by declaration or otherwise -- then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the
Debentures, the whole amount that then shall have become due and payable on all
such Debentures for principal or interest, or both, as the case may be, with
interest upon the overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue installments of
interest at the rate borne by the Debentures, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents,
attorneys, and counsel, and any expenses or liabilities incurred by the Trustee
hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall then be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or any other obligor on the Debentures and collect in the manner provided by
law out of the property of the Company or any other obligor on the Debentures
wherever situated the monies adjudged or decreed to be payable.
In case there shall be pending any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor on
the Debentures, its or their creditors, as such, or its or their property, the
Trustee, irrespective of whether the principal of the Debentures shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 8.02, shall be entitled and empowered, by the
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and interest owing and unpaid in
respect of the Debentures, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the
Debentureholders allowed in such judicial proceedings relative to the Company
or any other obligor on the Debentures,
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its or their creditors, or its or their property, and to collect and receive
any monies or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Debentureholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Debentureholders, to pay to the Trustee any amount due
it for compensation and expenses, including counsel fees incurred by it up to
the date of such distribution. To the extent that such payment of reasonable
compensation, expenses and counsel fees out of the estate in any such
proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, monies, securities and other property which the holders of the
Debentures may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this
Indenture, or under any of the Debentures, may be enforced by the Trustee
without the possession of any of the Debentures, or the production thereof on
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be bought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of
the holders of the Debentures, subject to the provisions of Article Four.
SECTION 8.03. Application of Monies Collected by Trustee.
Subject to the provisions of Article Four, any monies collected by the Trustee
pursuant to Section 8.02 shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such monies, upon
presentation of the several Debentures, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys
and counsel, and of all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a
result of its negligence or bad faith;
Second: In case the principal of the outstanding Debentures
shall not have become due and be unpaid, to the payment of
interest on the Debentures, in the order of the maturity of
the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as
the rate borne by the
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Debentures, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference; and
Third: In case the principal of the outstanding Debentures
shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the
Debentures for principal and interest, with interest on the
overdue principal; and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Debentures; and in case such
monies shall be insufficient to pay in full the whole amounts
so due and unpaid upon the Debentures, then to the payment of
such principal and interest without preference or priority of
principal over interest, or of interest over principal, or of
any installment of interest over any other installment of
interest, or of any Debenture over any other Debenture,
ratably to the aggregate of such principal and accrued and
unpaid interest; and
Fourth: To the payment of the remainder, if any, to the
Company, its successors or assigns, or to whomsoever may be
lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
SECTION 8.04. Proceedings by Debentureholders. No holder
of any Debenture shall have any right by virtue of or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of
default and of the continuance thereof, as hereinbefore provided, and unless
also (i) the holders of not less than twenty-five per cent in aggregate
principal amount of the Debentures then outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and (ii) the holders making such request shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, (iii)
the Trustee for sixty days after its receipt of such notice, request and offer
of indemnity shall have neglected or refused to institute any such action, suit
or proceeding, and (iv) no direction inconsistent with such written request
shall have been given to the Trustee during such sixty day period by the
holders of a majority in principal amount of the Debentures then outstanding;
it being understood and intended,and being expressly covenanted by the taker
and holder of every Debenture with every other taker and holder and the
Trustee, that
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no one or more holders of Debentures shall have any right in any manner
whatever by virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other holder of such Debentures,
or to obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Debentures.
Notwithstanding any other provisions in this Indenture, but
subject to the provisions of Article Four, the right of any holder of any
Debenture to receive payment of the principal and interest on such Debenture,
on or after the respective due dates expressed in such Debenture, or to
institute suit for the enforcement of any such payment on or after such
respective dates against the Company, shall not be impaired or affected without
the consent of such holder; provided, however, that the provisions of this
Section 8.04 are subject to the provisions of Article Four.
SECTION 8.05. Proceedings by Trustee. In case of an Event
of Default hereunder the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceeding
in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
SECTION 8.06. Remedies Cumulative and Continuing. All
powers and remedies given by this Article Eight to the Trustee or to the
Debentureholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any thereof or of any other powers and remedies available
to the Trustee or the holders of the Debentures by judicial proceedings or
otherwise to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Debentures to exercise any right or power
accruing upon any default occurring and continuing as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions by Section
8.04, every power and remedy given by this Article Eight or by law to the
Trustee or to Debentureholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Debentureholders.
SECTION 8.07. Direction of Proceedings and Waiver of Defaults
by Majority of Debentureholders. The holders of a
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majority in aggregate principal amount of the Debentures at the time
outstanding determined subject to the provisions of Section 10.04 shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee; provided, however, that the Trustee, subject to the provisions
of Section 9.01, shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve it in a
personal liability or would be in conflict with any rule of law or provision of
this Indenture; and provided further, that nothing in this Indenture contained
shall impair the right of the Trustee in its discretion to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
by Debentureholders. Prior to any declaration accelerating the maturity of the
Debentures, the holders of a majority in aggregate principal amount of the
Debentures at the time outstanding determined subject to the provisions of
Section 10.04 may on behalf of the holders of all of the Debentures waive any
past default or Event of Default hereunder and its consequences, except by
default in the payment of interest on the principal of any of the Debentures or
in respect of a covenant or provision hereof which under Article Twelve cannot
be modified or amended without the consent of the holder of each Debenture
affected. Upon any such waiver, the Company, the Trustee and the holders of
the Debentures shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default hereunder shall have been waived as
permitted by this Section 8.07, said default or Event of Default shall for all
purposes of the Debentures and this Indenture be deemed to have been cured and
to be not continuing.
SECTION 8.08. Notice of Defaults. The Trustee shall,
within ninety days after the occurrence of a default, mail to all holders of
Debentures, as the names and addresses of such holders appear upon the registry
books of the Company, notice of all defaults known to the Trustee, unless such
defaults shall have been cured or waived before the giving of such notice (the
term "defaults" for the purposes of this Section 8.08 being hereby defined to
be the events specified in clauses (a), (b), (c), (d), (e) and (f) of Section
8.01, not including any periods of grace provided for in said clauses (a), (c),
(d) and (e) and irrespective of the giving of written notice provided for in
said clauses (c) and (d)); provided, that, except in the case of default in the
payment of the principal of or interest on any of the Debentures, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible
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Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Debentureholders.
SECTION 8.09. Undertaking to Pay Costs. All parties to
this Indenture agree, and each holder of any Debenture by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 8.09 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders, holding in the aggregate more than ten per cent in aggregate
principal amount of the Debentures outstanding, or to any suit instituted by
any Debentureholder for the enforcement of the payment of the principal of or
interest on any Debenture against the Company on or after the due date
expressed in such Debenture.
SECTION 8.10. Enforcement of Conversion Rights. Anything
in this Indenture to the contrary notwithstanding, the holder of any Debenture,
without reference to and without the consent of either the Trustee or the
holder of any other Debenture, in his own behalf and for his own benefit may
enforce, and may institute and maintain any proceedings suitable to enforce,
his right to convert his Debenture into 1994-1 Series Stock as provided in
Article Five.
SECTION 8.11. Waiver of Stay, Extension, or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension, or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay, or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE NINE
CONCERNING THE TRUSTEE
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SECTION 9.01. Duties and Liabilities of Trustee. The
Trustee prior to the occurrence of an Event of Default and after the curing of
all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
No implied covenants or obligations shall be read into this Indenture against
the Trustee. In case an Event of Default has occurred (which has not been
cured) the Trustee shall exercise such of the rights and powers invested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
No provisions of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct of its own affairs, except that
(a) prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have
occurred:
(1) the duties and obligations of the Trustee
shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the
case of any such certificates or opinions which by
any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or
not they conform to the requirements of this
Indenture;
(b) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith
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in accordance with the direction of the holders of not less
than a majority in principal amount of the Debentures at the
time outstanding determined as provided in Section 10.04
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its right or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it.
SECTION 9.02. Reliance on Documents and Counsel. Except as
otherwise provided in Section 9.01:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, coupon, or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution
of the Board of Directors of the Company may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) The Trustee may consult with counsel and any written
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request, order or direction of any of the
Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein
or thereby;
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(e) The Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(f) Prior to the occurrence of an Event of Default
hereunder and after the curing of all Events of Default, the
Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, coupon
or other paper or document, unless requested in writing so to
do by the holders of a majority in aggregate principal amount
of the Debentures then outstanding determined subject to the
provisions of Section 10.04; provided, that if the payment
within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of
such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a
condition to so proceeding; the reasonable expense of every
such examination shall be paid by the Company or, if paid by
the Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys. The Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
SECTION 9.03. No Responsibility for Recitals or Certain Other
Matters. The recitals contained herein and in the Debentures (except in the
Trustee's certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures. The Trustee shall not be
accountable for the use or application by the Company of any Debentures or the
proceeds of any Debenture.
SECTION 9.04. Trustee, Paying Agent, Conversion Agent or
Registrar May Own Debentures. The Trustee or any paying agent, conversion
agent or Debenture registrar, in its individual or any other capacity, may
become the owner or pledgee of Debentures with the same rights it would have if
it were not Trustee, paying agent, conversion agent or Debenture registrar.
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SECTION 9.05. Monies to be Held in Trust. Subject to the
provisions of Article Four and Section 14.04 hereof, all monies received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received. The Trustee shall be under no
liability for interest on any monies received by it hereunder except such as it
may agree with the Company to pay thereon. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such monies shall be paid from time to time upon
the written order of the Company, signed by its President or any Vice President
or its Treasurer or an Assistant Treasurer.
SECTION 9.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expense and disbursement of its counsel and
of all persons not regularly in its employ) except any such expenses,
disbursements or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim of liability in the premises. The
obligations of the Company under this Section 9.06 to compensate the Trustee
and to pay or reimburse the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder, and such additional
indebtedness shall be secured by a lien prior to that of the Debentures upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of or interest on Debentures.
SECTION 9.07. Officers' Certificate as Evidence. Except as
otherwise provided in Section 9.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking, suffering, or omitting
any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such Certificate, in
the absence of
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negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 9.08. Conflicting Interest of the Trustee.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section 9.08, it shall, within ninety
days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest, or resign in the
manner and with the effect specified in Section 9.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 9.08, the Trustee
shall, within ten days after the expiration of such ninety-day
period, transmit notice of such failure by mail to all holders of
Debentures, as the names and addresses of such holders appear upon
the registration books of the Company.
(c) For the purposes of this Section 9.08, the Trustee shall be
deemed to have a conflicting interest if
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral
trust indenture under which the only collateral consists of
Debentures issued under this Indenture; provided, however,
that there shall be excluded from the operation of this
paragraph: (A) the Indenture dated as of August 17, 1984
with Deposit Guaranty National Bank, as Trustee, under
which the Company's 1984-A Series Convertible Subordinated
Debentures are outstanding, (B) the Indenture dated as of
August 13, 1985 with Deposit Guaranty National Bank, as
Trustee, under which the Company's 1985-A Series
Convertible Subordinated Debentures are outstanding, (C)
the Indenture dated as of August 11, 1986 with Deposit
Guaranty National Bank, as Trustee, under which the
Company's 1986-A Series Convertible Subordinated Debentures
are outstanding and (D) the Indenture dated as of August
10, 1987 with Deposit Guaranty National Bank, as Trustee,
under which the Company's 1982-A, 1982-B, 1982-C, 1982-D,
1983-A, 1984-B and 1987-A Series Convertible Subordinated
Debentures are outstanding, (E) the Indenture dated as of
August 30, 1988 with Deposit Guaranty National Bank as
Trustee, under which
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the Company's 1988-A Series Convertible Subordinated
Debentures are outstanding, (F) the Indenture dated as of
November 29, 1988 with Deposit Guaranty national Bank as
Trustee, under which the Company's 1988-1 Series
Convertible Subordinated Debentures are outstanding, (G)
the Indenture dated as of August 22, 1989 with Deposit
Guaranty National Bank as Trustee, under which the
Company's 1989-A Series Convertible Subordinated Debentures
are outstanding, (H) the Indenture dated as of August 22,
1989 with Deposit Guaranty National Bank as Trustee, under
which the Company's 1989-1 Series Convertible Subordinated
Debentures are outstanding, (I) the Indenture dated as of
November 10, 1989 with Deposit Guaranty National Bank as
Trustee, under which the Company's 1989-2 Series
Convertible Subordinated Debentures are outstanding, (J)
the Indenture dated as of August 27, 1990 with Deposit
Guaranty National Bank as Trustee, under which the
Company's 1990-1 Series Convertible Subordinated Debentures
are outstanding, (K) the Indenture dated as of November 9,
1990 with Deposit Guaranty National Bank as Trustee, under
which the Company's 1990-2 Series Convertible Subordinated
Debentures are outstanding, (L) the Indenture dated as of
August 27, 1991 with Deposit Guaranty National Bank as
Trustee, under which the Company's 1991-1 Series
Convertible Subordinated Debentures are outstanding, (M)
the Indenture dated as of November 15, 1991, with Deposit
Guaranty National Bank as Trustee, under which the
Company's 1991-2 Series Convertible Subordinated Debentures
are outstanding, (N) the Indenture dated as of November 13,
1992, with Deposit Guaranty National Bank as Trustee, under
which the Company's 1992-1 Series Convertible Subordinated
Debentures are outstanding, (O) any other indenture or
indentures under which other securities, or certificates of
interest or participation in other securities, of the
Company are outstanding if (i) this Indenture and such
other indenture or indentures are wholly unsecured and such
other indenture or indentures are hereafter qualified under
the Trust Indenture Act of 1939, unless the Securities and
Exchange Commission shall have found and declared by order
pursuant to subsection (b) of Section 305 or subsection (c)
of Section 307 of the Trust Indenture Act of 1939 that
differences exist between the provisions of this Indenture
and the provisions of such other indenture or indentures
which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee
from acting as
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such under this Indenture and such other indenture or
indentures, or (ii) the Company shall have sustained the
burden of proving, on application to the Securities and
Exchange Commission and after opportunity for hearing
thereon, that the trusteeship under this Indenture and such
other indenture is not so likely to involve a material
conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify
the Trustee from acting as such under one of such
indentures, or (iii) such other indenture or indentures
contain substantially the same terms as this Indenture and
such other indenture or indentures and this Indenture are
exempt from qualification under the Trust Indenture Act of
1939.
(2) The Trustee or any of its directors or executive
officers is an obligor upon the Debentures issued under
this Indenture or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with the Company or an underwriter
for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee, or representative of the Company, or of an
underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting,
except that (A) one individual may be a director and/or an
executive officer of the Trustee and a director and/or an
executive officer of the Company, but may not be at the
same time an executive officer of both the Trustee and the
Company; (B) if and so long as the number of directors of
the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer of
the Trustee and a director of the Company; and (C) the
Trustee may be designated by the Company or by an
underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent, or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of
this subsection (c), to act as trustee whether under an
indenture or otherwise;
(5) ten per cent or more of the voting securities of
Trustee is beneficially owned either by the Company or by
any director, partner, or executive officer
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thereof, or twenty per cent or more of such voting
securities is beneficially owned, collectively, by any two
or more of such persons; or ten per cent or more of the
voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any
director, partner, or executive officer thereof, or is
beneficially owned collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or holds
collateral security for an obligation which is in default,
(A) five per cent or more of the voting securities, or ten
per cent or more of any other class of security, of the
Company, not including the Debentures issued under this
Indenture and securities issued under any other indenture
under which the Trustee is also trustee, or (B) ten per
cent or more of any class of security of an underwriter for
the Company;
(7) the Trustee is the beneficial owner of, or holds
collateral security for an obligation which is in default,
five per cent or more of the voting securities of any
person who, to the knowledge of the Trustee, owns ten per
cent or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds
collateral security for an obligation which is in default,
ten per cent or more of any class of security of any person
who, to the knowledge of the Trustee, owns fifty per cent
or more of the voting securities of the Company; or
(9) the Trustee owns on May 15 in any calendar year, in
the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or conservator, or
in any other similar capacity, an aggregate of twenty-five
per cent or more of the voting securities, or of any class
of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of
this subsection (c). As to any such securities of which
the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence
shall not apply for a period of two years from the date of
such acquisition, to the extent
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that such securities included in such estate do not exceed
twenty-five per cent of such voting securities or
twenty-five per cent of any such class of security.
Promptly after May 15 in each calendar year, the Trustee
shall make a check of its holdings of such securities in
any of the above-mentioned capacities as of such May 15.
If the Company fails to make payment in full of principal
of or interest on any of the Debentures when and as the
same become due and payable, and such failure continues for
thirty days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration
of such thirty-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph
(9), all such securities so held by the Trustee, with sole
or joint control over such securities vested in it, shall,
but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this
subsection (c).
The specifications of percentages in paragraphs (5) to (9),
inclusive, of this subsection (c) shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay monies lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be in default when a default in payment of principal shall have continued for
thirty days or more and shall not have been cured; and (c) the Trustee shall
not be deemed to be the owner or holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar representative
capacity.
Except as provided in the next preceding paragraph hereof, the
word "security" or "securities" as used in this Indenture
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shall mean any note, stock, treasury stock, bond, debenture, evidence of
indebtedness, certificate of interest or participation in any profit-sharing
agreement, collateral-trust certificate, pre-organization certificate or
subscription, transferable share, investment contract, voting-trust
certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security" or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For the purposes of this Section 9.08:
(1) The term "underwriter" when used with reference to
Company shall mean every person who, within three years
prior to the time as of which the determination is made,
has purchased from the Company with a view to, or has
offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has
participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in excess
of the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions
with respect to any organization whether incorporated or
unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization, or a
government or political subdivision thereof. As used in
this paragraph, the term "trust" shall include only a trust
where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in
the direction or management of the affairs of a person, or
any security issued under or pursuant to any trust
agreement or arrangement whereby a trustee or trustees or
agent or agents for the owner or holder
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of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" shall mean an obligor upon the
Debentures.
(6) The term "executive officer" shall mean the
president, every vice president, every trust officer, the
cashier, the secretary, and the treasurer of a corporation,
and any individual customarily performing similar functions
with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
(e) The percentages of voting securities and other securities
specified in this Section 9.08 shall be calculated in accordance
with the following provisions:
(1) A specified percentage of the voting securities of
Trustee, the Company or any other person referred to in
this Section 9.08 (each of whom is referred to as a
"person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles
the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all
the outstanding voting securities of such person are
entitled to cast in the direction or management of the
affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount", when used in regard to securities
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital
shares, and the number of units if relating to any other
kind of security.
(4) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities
shall not be deemed outstanding within the meaning of this
definition:
(i) Securities of an issuer held in a sinking
fund relating to securities of the issuer of the
same class;
(ii) Securities of an issuer held in a sinking fund
relating to another class of securities of the
issuer, if the obligation evidenced by such
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other class of securities is not in default as to
principal or interest or otherwise;
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in
default as to principal or interest or otherwise;
and
(iv) Securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall
be deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
provided, however, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such
series different classes; and provided further, that, in the case
of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed
sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
SECTION 9.09. Eligibility of Trustee. There shall at all times
be a Trustee hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States or any State or Territory
thereof or of the District of Columbia authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$10,000,000, subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.09, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 9.09,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 9.10.
SECTION 9.10. Resignation or Removal of Trustee;
Appointment of Successor Trustee .
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(a) The Trustee may at any time resign by giving written notice
of such resignation to the Company and by mailing notice thereof
to the holders of the Debentures at their addresses as they shall
appear on the registry books of the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors of the Company, one copy of which
instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have
been so appointed and have accepted appointment within sixty days
after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Debentureholder who has
been a bona fide holder of a Debenture, or Debentures for at least
six months may, subject to the provisions of Section 8.09, on
behalf of himself and all other similarly situated, petition any
such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 9.08 after written request
therefor by the Company or by any Debentureholder who has
been a bona fide holder of a Debenture or Debentures for at
least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.09 and shall fail to
resign after written request therefor by the Company or by
any such Debentureholder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors of the Company, one
copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the
provisions of Section 8.09, any Debentureholder who has been a
bona fide
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holder of a Debenture or Debentures for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Debentures at the time outstanding may at any time remove the
Trustee and nominate a successor trustee which shall be deemed
appointed as successor trustee unless within ten days after such
nomination the Company shall object thereto, in which case the
Trustee so removed or any Debentureholder, upon the terms and
conditions and otherwise as in subdivision (a) of this Section
9.10 provided, may petition any court of competent jurisdiction
for an appointment of a successor trustee.
(d) No resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this
Section 9.10 shall be effective until acceptance of appointment by
the successor trustee as provided in Section 9.11.
SECTION 9.11. Acceptance by Successor Trustee. Any successor
trustee appointed as provided in Section 9.10 shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as if originally named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of
Section 9.06, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon
request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a lien upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 9.06.
No successor trustee shall accept appointment as provided in this
Section 9.11 unless at the time of such acceptance such
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successor trustee shall be qualified under the provisions of Section 9.08 and
eligible under the provisions of Section 9.09.
Upon acceptance of appointment by a successor trustee as provided
in this Section 9.11, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Debentures at their addresses as they shall
appear on the registry books of the Company. If the Company fails to mail such
notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Company.
SECTION 9.12. Succession by Merger and Certain Other Events. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Debentures shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee and deliver such
Debentures so authenticated; and in case at that time any of the Debentures
shall not have been authenticated, any successor to the Trustee may
authenticate such Debentures either in the name of any predecessor trustee
hereunder or in the name of such successor to the Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Debentures or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor trustee or authenticate Debentures in the
name of any predecessor trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 9.13. Limitation on Rights of Trustee as a Creditor.
(a) Subject to the provisions of subsection (b) of this Section
9.13, if the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company or of any
other obligor on the Debentures within four months prior to a
default, as defined in subsection (c) of this Section 9.13, or
subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the
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holders of the Debentures, and the holders of other indenture
securities (as defined in subsection (c) of this Section 9.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such four months' period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition therefor, or otherwise,
after the beginning of such four months' period, or an
amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or
such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of
the bona fide sale of any such claim by the Trustee to a
third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the federal
bankruptcy laws, as now or hereafter constituted, or other
applicable federal or state law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim if such property
was so held prior to the beginning of such four months'
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if such
claim was created after the beginning of such four months'
period and such property was received as security therefor
simultaneously with the creation
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thereof, and if the Trustee shall sustain the burden of
proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default,
as defined in subsection (c) of this Section 9.13, would
occur within four months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in such
paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property
substituted after the beginning of such four months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required hereunder to maintain a special
account, the funds and property held in such special account and the proceeds
thereof shall be apportioned between the Trustee, the Debentureholders and the
holders of other indenture securities in such manner that the Trustee, the
Debentureholders and the holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the federal bankruptcy laws, as now
or hereafter constituted, or other applicable federal or state law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee, the Debentureholders and the holders of other
indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
federal bankruptcy laws, as now or hereafter constituted, or other applicable
federal or state law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
federal bankruptcy laws, as now or hereafter constituted; or other applicable
federal or state law,
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whether such distribution is made in cash, securities, or other property, but
shall not include any such distribution with respect to the secured portion, if
any, of such claim. The court in which such bankruptcy, receivership, or
proceeding for reorganization is pending shall have jurisdiction (i) to
apportion between the Trustee, the Debentureholders, and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, the Debentureholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.
Any trustee who has resigned or been removed after the beginning
of such four months' period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such four
months' period, it shall be subject to the provisions of this subsection (a) if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such
Trustee had continued as trustee, occurred after the
beginning of such four months' period; and
(ii) such receipt of property or reduction of claim
occurred within four months after such resignation or
removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section 9.13 a creditor relationship arising from:
(1) The ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by
the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for
the purpose of preserving any property which shall at any
time be subject to the lien of this
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Indenture or of discharging tax liens or other prior liens
or encumbrances thereon, if notice of such advance and of
the circumstances surrounding the making thereof is given
to the Debentureholders at the time and in the manner
provided in Section 7.04 with respect to reports pursuant
to subsections (a) and (b) thereof, respectively;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as
a result of goods or securities sold in a cash transaction
as defined in subsection (c) of this Section 9.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly
or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances
or obligations which fall within the classification of
self-liquidating paper as defined in subsection (c) of this
Section 9.13.
(c) As used in this Section 9.13:
(1) The term "default" shall mean any failure to make
payment in full of the principal of or interest upon any of
the Debentures or upon the other indenture securities when
and as such principal or interest becomes due and payable;
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined
in the Trust Indenture Act of 1939) outstanding under any
other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially
similar to the provisions of subsection (a) of this Section
9.13, and (C) under which a default exists at the time of
the apportionment of the funds and property held in said
special account;
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(3) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand;
(4) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacture,
shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of goods, wares or merchandise previously constituting
the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation; and
(5) The term "Company" shall mean any obligor upon the
Debentures.
SECTION 9.14. Records of Trustee. The Trustee shall retain in
its possession so long as any of the Debentures shall remain outstanding all
financial statements furnished to it pursuant to this Indenture. The Trustee
shall at all times have access to those books and records of the Company which
may be reasonably required by the Trustee to fulfill its duties and obligations
hereunder, except that no such access shall be allowed to any books or records
constituting restricted security information under any law or governmental
regulation at the time applicable thereto.
ARTICLE TEN
CONCERNING THE DEBENTUREHOLDERS
SECTION 10.01. Action by Debentureholders. Whenever in this
Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Debentures may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may
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be evidenced (a) by any instrument or any number of instruments of similar
tenor executed by Debentureholders in person or by agent or proxy appointed in
writing, or (b) by the record of the holders of Debentures voting in favor
thereof at any meeting of Debentureholders duly called and held in accordance
with the provisions of Article Eleven, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of
Debentureholders.
SECTION 10.02. Proof of Execution by Debentureholders; Evidence of
Holdings. Subject to the provisions of Section 9.01 and 11.05, proof of the
fact and date of execution of any instrument by a Debentureholder or his agent
or proxy and proof of the holding by any person of any of the Debentures shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company if made in the following manner:
(a) The fact and date of the execution by any such person of
any instrument may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the person
executing such instrument acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer and where such
execution is by an officer of a corporation or association or a
member of a partnership, on behalf of such corporation,
association or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(b) The ownership of Debentures shall be proved by the
registers of such Debentures or by a certificate of the registrar
thereof.
The record of any Debentureholders' meeting shall be proved in the
manner provided in Section 11.06. The Trustee may require such additional
proof of any matter referred to in this Section 10.02 as it shall deem
necessary.
SECTION 10.03. Who Deemed Absolute Owners. The Company, the
Trustee, any paying agent, any conversion agent and any Debenture registrar may
deem and treat the person in whose name any Debenture shall be registered upon
the books of the Company as the absolute owner of such Debenture (whether or
not such Debenture shall be overdue and notwithstanding any notation of
ownership or writing thereon by anyone other than the Company or any Debenture
registrar) for the purpose of receiving payment of or on account of the
principal of and interest on such Debenture
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and for all other purposes; and neither the Company nor the Trustee nor any
paying agent nor any conversion agent nor any Debenture registrar shall be
affected by any notice to the contrary. Payment of or on account of the
principal of and (subject to the provisions of Section 2.03) interest on such
Debenture shall be made only to or upon the order in writing of the registered
holder thereof. All such payments and all such conversions shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for monies payable upon any such Debenture.
SECTION 10.04. Company-owned Debentures Disregarded. In
determining whether the holders of the requisite aggregate principal amount of
Debentures have concurred in any direction or consent under this Indenture,
Debentures which are owned by the Company or any other obligor on the
Debentures or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other
obligor on the Debentures shall be disregarded and deemed not to be outstanding
for the purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction or consent only Debentures which the Trustee knows are so owned shall
be so disregarded. The Company shall, immediately upon issuance of the
Debentures, provide the Trustee with an Officers' Certificate and an Opinion of
Counsel specifying which Debentures are so owned and that no other Debentures
are so owned. The Company shall provide further Officers' Certificates and
Opinions of Counsel as necessary to reflect changes in such information.
Debentures so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 10.04, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Debentures and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 10.05. Revocation of Consents; Future Holders Bound. At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 10.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Debentures specified in this Indenture in
connection with such action, any holder of a Debenture which is included in the
Debentures the holders of which have consented to such action may, by filing
written notice with the Trustee at its office and upon proof of holding as
provided in Section 10.02, revoke such action so far as concerns such holder's
Debenture. Absent a proper revocation, any consent to an action given by the
holder of
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any Debenture shall be conclusive and binding upon such holder and upon all
future holders and owners of such Debenture, irrespective of whether or not any
notation in regard thereto is made upon such Debenture or any Debenture issued
in exchange or substitution therefor. Any action taken by the holders of the
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Debentures.
SECTION 10.06. Transfer of Debentures. Except as provided
herein, the Debentures may not be sold, assigned, transferred, pledged or
otherwise hypothecated. A Debentureholder may pledge or hypothecate a
Debenture for the purpose of borrowing money to buy the Debenture provided that
the Company consents in writing to such intended pledge or hypothecation prior
to consummation of such pledge or hypothecation. Any such consent shall be
substantially in the form attached hereto as Exhibit A. Upon giving such
consent, the Company shall furnish to the Trustee and any conversion agent an
Officers' Certificate which shall identify the Debentures covered by such
consent by stating the serial number, name of registered holder and principal
amount of such Debentures. The duly authorized representative of the estate of
a deceased Debentureholder may request that a Debenture held in that estate be
registered in the name of the person or persons to whom such Debenture passed
by will or the laws of intestate succession, provided that such representative
shall have supplied proof satisfactory to the Company and the Trustee of his
authority, and of any other matters which the Trustee or the Company may deem
relevant. A person who has foreclosed on a pledge or hypothecation on a
Debenture made in compliance with this Section 10.06 may request that such
Debenture be registered in the name of such person. As used herein, the term
"person" shall include any corporation, bank, savings and loan association,
partnership and similar business entities.
ARTICLE ELEVEN
DEBENTUREHOLDERS' MEETINGS
SECTION 11.01. Purpose of Meetings. A meeting of
Debentureholders may be called at any time from time to time pursuant to the
provisions of this Article Eleven for any of the following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to
the waiving of any default hereunder and its consequences,
or to take any other action
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authorized to be taken by Debentureholders pursuant to any
of the provisions of Article Eight;
(2) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article Nine;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions
of Section 12.02; or
(4) to take any other action authorized to be taken by
or on behalf of the holders of any specified aggregate
principal amount of the Debentures under any other
provision of this Indenture or under applicable law.
SECTION 11.02. Call of Meetings by Trustee. The Trustee may at
any time call a meeting of Debentureholders to take any action specified in
Section 11.01, to be held at such time and at such place in the City of
Jackson, Mississippi, as the Trustee shall determine. Notice of every meeting
of the Debentureholders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
mailed to the holders of Debentures at their addresses as they shall appear on
the registry books of the Company. Such notice shall be mailed not less than
twenty nor more than one hundred and eighty days prior to the date fixed for
the meeting.
SECTION 11.03. Call of Meetings by Company or Debentureholders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least ten per cent in aggregate principal
amount of the Debentures then outstanding, shall have requested the Trustee to
call a meeting of Debentureholders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within twenty days
after receipt of such request, then the Company or such Debentureholders may
determine the time and the place in the City of Jackson, Mississippi, for such
meeting and may call such meeting to take any action authorized in Section
11.01, by mailing notice thereof as provided in Section 11.02.
SECTION 11.04. Qualifications for Voting. To be entitled to
vote at any meeting of Debentureholders a person shall (a) be a holder of one
or more Debentures; or (b) be a person appointed by an instrument in writing as
proxy by a holder of one or more Debentures. The only persons who shall be
entitled to be present or to speak at any meeting of Debentureholders shall be
the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
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SECTION 11.05. Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Debentureholders, in regard to
proof of the holding of Debentures and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies and other evidence of the right to vote, and such other
matters concerning the conduct of the meetings as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Debentureholders as provided in Section 11.03, in which case
the Company or the Debentureholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 10.04, at any meeting each
Debentureholder or proxy shall be entitled to one vote (and/or fraction
thereof) for each $50.00 principal amount of Debentures (and/or fraction
thereof) held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Debenture challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Debentures held by him or instruments in writing as aforesaid duly designating
him as the person to vote on behalf of other Debentureholders.
At any meeting of Debentureholders, the presence of persons
holding or representing Debentures in an aggregate principal amount sufficient
under the appropriate provisions of this Indenture to take action upon the
business for the transaction of which such meeting was called shall constitute
a quorum. Any meeting of Debentureholders duly called pursuant to the
provisions of Section 11.02 or 11.03 may be adjourned from time to time by vote
of the holders (or proxies for the holders) of a majority of Debentures
represented at the meeting and entitled to vote, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 11.06. Voting. The vote upon any resolution submitted
to any meeting of Debentureholders shall be by written ballots on which shall
be subscribed the signatures of the holders of Debentures or of their
representatives by proxy and the serial number or numbers of the Debentures
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the
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secretary of the meeting their verified written reports in duplicate for all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Debentureholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 11.02. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting, and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 11.07. No Delay of Rights by Meeting. Nothing in this
Article Eleven contained shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Debentureholders or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee
or to the Debentureholders under any of the provisions of this Indenture or of
the Debentures.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 12.01. Supplemental Indentures without Consent of
Debentureholders. The Company, when authorized by resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to make provision with respect to the conversion rights of
holders of Debentures pursuant to the requirements of Section
5.09;
(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations
of the Company pursuant to Article Thirteen hereof;
(c) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
holders of the Debentures as the Board of Directors of the Company
and the Trustee shall consider to be for
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the protection of the holders of Debentures, and to make the
occurrence, or the occurrence and continuance, of a default in any
of such additional covenants, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such additional
covenant, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee
upon such default;
(d) to provide for the issuance under this Indenture of
Debentures in coupon form (including Debentures registrable as to
principal only), but otherwise with all the provisions and subject
to all the conditions and limitations of the Debentures issued
hereunder in fully registered form, and to provide for
exchangeability of such Debentures with the Debentures issued
hereunder in fully registered form; and
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided such action pursuant to this clause
(e) shall not adversely affect the interests of the holders of the
Debentures.
(f) to modify, eliminate, or add to the provisions of this
Indenture to such extent as may be necessary to effect the
qualification of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted, if such
qualification is or becomes necessary or desirable, and to add to
this Indenture such other provisions as may be expressly permitted
by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in
effect at the date as of which this instrument was executed, or
any corresponding provision in any similar federal statute
hereafter enacted.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and
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assignment of any property thereunder, but the Trustee shall not be obligated
to enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 12.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Debentures at the time outstanding,
notwithstanding any of the provisions of Section 12.02.
SECTION 12.02. Supplemental Indentures with Consent of
Debentureholders. With the consent (evidenced as provided in Section 10.01)
of the holders of not less than sixty-six and two-thirds per cent in aggregate
principal amount of the Debentures at the time outstanding, the Company, when
authorized by resolution of its Board of Directors, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Debentures; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Debentures, or reduce the rate or extend the
time of payment of interest thereon, or reduce the principal amount thereof, or
change any place of payment where, or the coin or currency in which, any
Debenture or the interest thereon, is payable, or modify the provisions of this
Indenture with respect to the subordination of the Debentures in a manner
adverse to the Debentureholders, or impair the right to convert the Debentures
into 1994-1 Series Stock on the terms set forth herein (except as permitted by
Section 12.01(a)), without the consent of the holder of each Debenture so
affected, or (ii) reduce the aforesaid percentage of Debentures, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of all Debentures then outstanding.
Upon the request of the Company, accompanied by a copy of the
resolutions of its Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Debentureholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section
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12.02, the Company, at its cost and expense, shall mail a notice, setting forth
in general terms the substance of such supplemental indenture, to all
Debentureholders of record as of the date of such supplemental indenture.
It shall not be necessary for the consent of the Debentureholders
under this Section 12.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 12.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures. Any supplemental indenture executed pursuant to the
provisions of this Article Twelve shall comply with the Trust Indenture Act of
1939 as in effect on the date of execution thereof if such compliance is
necessary or is determined by the Company to be desirable. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article
Twelve, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debentures shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 12.04. Notation on Debentures. Debentures authenticated
and delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Twelve may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Debentures so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the
Company, to any modifications of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Debentures then
outstanding.
SECTION 12.05. Evidence of Compliance of Supplemental Indenture
to be Furnished Trustee. The Trustee, subject to the provisions of Sections
9.01 and 9.02, shall be entitled to receive and rely upon an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Indenture.
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ARTICLE THIRTEEN
CONSOLIDATION, MERGER AND SALE BY THE COMPANY
SECTION 13.01. Consolidation, Merger or Sale of Assets Permitted.
The Company covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person, firm or corporation, (i) unless either (a) the Company shall be the
continuing corporation, or (b) the successor (if other than the Company) shall
be a corporation which shall expressly assume the due and punctual payment of
the principal of and interest on all the Debentures, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) unless the Company or such successor corporation, as
the case may be, shall not, immediately after such merger or consolidation, or
such sale or conveyance, be in default in the performance of any such covenant
or condition.
SECTION 13.02. Succession by Successor Corporation. In case of
any such merger, consolidation, sale or conveyance and upon any such assumption
by the successor corporation, such successor corporation shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein as a party hereto instead of the Company. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of First Mississippi Corporation, any or all of the Debentures
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor corporation
(instead of First Mississippi Corporation) and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Debentures which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debentures which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All
the Debentures so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debentures theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Debentures
had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
82
<PAGE> 90
SECTION 13.03. Evidence to be Furnished Trustee. The Trustee,
subject to the provisions of Sections 9.01 and 9.02, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or conveyance and any such assumption comply with
the provisions of this Article Thirteen.
ARTICLE FOURTEEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 14.01. Discharge of Indenture. If (a) there shall have
been delivered to the Trustee for cancellation all Debentures theretofore
authenticated (other than any Debentures which shall have been destroyed, lost
or stolen and in lieu of or in substitution for which other Debentures shall
have been authenticated and delivered), or (b) all such Debentures not
theretofore delivered to the Trustee for cancellation shall have become due and
payable at maturity and the Company shall have deposited with the Trustee, in
trust, funds sufficient to pay at maturity all of such Debentures (other than
any Debentures which shall have been destroyed, lost or stolen and in lieu of
or in substitution for which other Debentures shall have been authenticated and
delivered) not theretofore delivered to the Trustee for cancellation, including
principal and interest, and such deposit shall be upon terms making such funds
payable forthwith upon due presentation, whether before or after such date of
maturity or redemption of such Debentures, and if in either case the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company, and shall deliver to the Trustee an Officers' Certificate and an
Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with, then (except as to any remaining rights of conversion of the
Debentures) this Indenture shall cease to be of further effect, and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel as required by Section 16.06 and at the cost and expense
of the Company, shall execute power instruments acknowledging satisfaction of
and discharging this Indenture. However, this Indenture shall continue in
effect to the extent necessary to provide for (a) the conversion of Debentures
as provided in Article Five, (b) the discharge of the duties and obligations of
the Trustee, and (c) the right of the holders of the Debentures to payment of
funds held by the Trustee pursuant to this Article Fourteen. The Company,
however, hereby agrees to compensate and reimburse the Trustee for any services
rendered and costs or expenses thereafter reasonably and properly incurred by
the Trustee in connection with
83
<PAGE> 91
this Indenture or the Debentures, and to indemnify the Trustee and hold it
harmless against any loss, liability, or expense as provided in Section 9.06
hereof.
SECTION 14.02. Deposited Monies to be Held in Trust by Trustee.
All monies deposited with the Trustee pursuant to Section 14.01 shall be held
in trust and, subject to the provisions of this Indenture and the Debentures,
applied by it to the payment, either directly or through any paying agent, to
the holders of the particular Debentures for the payment of which such monies
have been deposited with the Trustee, of all sums due thereon for principal and
interest.
SECTION 14.03. Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any
paying agent of the Debentures (other than the Trustee) shall, upon demand of
the Company, be repaid to it or paid to the Trustee, and thereupon such paying
agent shall be released from all further liability with respect to such monies.
SECTION 14.04. Unclaimed Monies. Any monies deposited with the
Trustee or any paying agent (including monies held in trust by the Company if
it shall act as its own paying agent) not applied but remaining unclaimed by
the holders of Debentures for six years after the date upon which the principal
of or interest on such Debentures shall have become due and payable shall be
repaid to the Company by the Trustee or such paying agent on demand, or if held
in trust by the Company may at the Company's option be released from such
trust; and the holder of any of the Debentures entitled to receive such payment
shall thereafter look only to the Company, as the holder of a general claim,
for the payment thereof, and all liability of the Trustee or such paying agent
with respect to such monies, and all liability of the Company as Trustee
thereof, shall thereupon cease, provided, however, that the Trustee or such
paying agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once a week for two successive
weeks (in each case on any day of the week) in an Authorized Newspaper a notice
that said monies have not been so applied and that after a date named therein
any unclaimed balance of said monies then remaining will be returned to the
Company.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
84
<PAGE> 92
SECTION 15.01. Indenture and Debentures Solely Corporate
Obligations. No recourse for the payment of the principal of or interest on
any Debentures, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in this Indenture, or in any Debenture, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly
waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Debentures.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01. Provisions Binding on Company's Successors. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 16.02. Official Acts by Successor Corporation. Any act
or proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.
SECTION 16.03. Notices. Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the holders of Debentures on the Company may be given or
served by being deposited, first class postage prepaid, in a United States post
office letter box addressed (until another address is filed by the Company with
the Trustee) to First Mississippi Corporation, 700 North Street, Jackson,
Mississippi 39202, Attention of the Treasurer. Any notice, direction, request
or demand by any Debentureholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the principal corporate trust office of the Trustee, Deposit Guaranty
National Bank, One Deposit Guaranty Plaza, Jackson, Mississippi 39205,
addressed to the attention of its Corporate Trust Division (or such other
address of the Trustee as shall have been set forth
85
<PAGE> 93
in a notice from the Trustee transmitted by mail to all holders of Debentures,
as their names and addresses appear upon the registry books of the Company).
For the purposes of Article Four of this Indenture, any notice, direction,
request or demand by the Company or any holder of Senior Indebtedness to or
upon the Trustee shall be deemed sufficiently given or made only if given or
made as described in the preceding sentence.
SECTION 16.04. Subscription. Debentures will be issued only to
persons to whom the Company has granted options to purchase such Debentures
under the Company's 1988 Long-Term Incentive Plan. The Trustee shall have no
obligations with respect to the terms or performance of such options or such
Plan.
SECTION 16.05. Governing Law. This Indenture and each Debenture
shall be deemed to be a contract made under the laws of the State of
Mississippi and for all purposes shall be governed by and construed in
accordance with the laws of said State.
SECTION 16.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that in the opinion of the signers all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been
complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinion contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 16.07. Legal Holidays. If the date of maturity of
principal or interest or the date of prepayment or redemption of any Debenture
or the last day on which a Debentureholder has the right to convert his
Debenture at the conversion price shall be (i) a Saturday, a Sunday or a legal
holiday at the place where payment or conversion thereof, as the case may be,
is to be made, or (ii) a day on which banking institutions at the place where
such payment or conversion, as the case may be, is to be made are
86
<PAGE> 94
authorized by law to remain closed, then such payment or conversion, as the
case may be, may be made on the next succeeding business day which is not a day
specified in (i) or (ii) above, with the same force and effect as if made on
the nominal date of maturity, and no interest shall accrue for the period from
and after such nominal date.
SECTION 16.08. Trust Indenture Act to Control. If this Indenture
is qualified under the Trust Indenture Act of 1939, then if and to the extent
that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to be included
in this Indenture by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939, such required provision shall control.
SECTION 16.09. Table of Contents and Headings. The table of
contents, titles and headings of the articles and sections of this Indenture
have been inserted for convenience of reference only, are not to be considered
a part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 16.10. Method of Publication or Other Notice When
Indenture Provision for Publication or Notice Cannot Be Followed. In case, by
reason of the temporary or permanent suspension of publication of any
newspaper, or by reason of any other cause, it shall be impossible to make
publication of any notice required hereby in a newspaper as herein provided,
then such publication or other notice in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice. Such publication or other notice shall, so far as may be, approximate
the terms and conditions of the publication in lieu of which it is given.
SECTION 16.11. Invalidity of Some Provisions Shall Not Affect
Others. In case any one or more of the provisions contained in this Indenture
or in the Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Debentures,
but this Indenture and such Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 16.12. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
Deposit Guaranty National Bank hereby accepts the trust in this
Indenture declared and provided upon the terms and conditions hereinabove set
forth.
87
<PAGE> 95
IN WITNESS WHEREOF, FIRST MISSISSIPPI CORPORATION has caused this
Indenture to be signed and acknowledged by its President or one of its Vice
Presidents, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or one of its Assistant Secretaries, and DEPOSIT
GUARANTY NATIONAL BANK has caused this Indenture to be signed and acknowledged
by one of its Vice Presidents or Assistant Vice Presidents, and has caused its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or one of its Assistant Secretaries, as of the day and year first
written above.
<TABLE>
<S> <C>
FIRST MISSISSIPPI CORPORATION
[SEAL]
By: /s/ R. Michael Summerford
R. Michael Summerford
Vice President
Attest:
/s/ James L. McArthur
Secretary/Assistant Secretary
DEPOSIT GUARANTY NATIONAL BANK
[SEAL]
By: /s/ Pete J. Cajoleas
-----------------------------
Vice President and
Trust Officer
Attest:
/s/ Janice M. Powell
- --------------------------------
Title: Assistant Trust Officer
</TABLE>
88
<PAGE> 96
STATE OF MISSISSIPPI )
) SS.
COUNTY OF HINDS )
On this 16th day of February , 1995, before me, the
undersigned, a Notary Public of the State of Mississippi, personally appeared
R. Michael Summerford, who proved to me on the basis of satisfactory evidence
to be the Vice President, and James L. McArthur , who proved to
me on the basis of satisfactory evidence to be the Secretary or Assistant
Secretary of FIRST MISSISSIPPI CORPORATION, and that they, as such officers,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal
the day and year first above written.
<TABLE>
<S> <C>
/s/ Nora Jean I. Breazeale
---------------------------------
Notary Public of the
State of Mississippi
[Notary Seal]
My Commission Expires
September 20, 1997
---------------------------------
</TABLE>
89
<PAGE> 97
STATE OF MISSISSIPPI )
) SS.
COUNTY OF HINDS )
On this 17th day of February , 1995 before me,
the undersigned, a Notary Public of the State of Mississippi, personally
appeared Pete J. Cajoleas who proved to me on the basis of satisfactory
evidence to be the Vice President and Trust Officer, and Janice M. Powell
, who proved to me on the basis of satisfactory evidence to be the Assistant
Trust Officer of DEPOSIT GUARANTY NATIONAL BANK, and that they, as such
officers, being authorized to do so, executed the foregoing instrument for the
purposes therein contained.
IN WITNESS WHEREOF I have hereunto set my hand and official seal
the day and year first above written.
<TABLE>
<S> <C>
/s/ Mary E. Husky
---------------------------------
Notary Public of the
State of Mississippi
[Notary Seal]
My Commission Expires
February 18, 1996
---------------------------------
</TABLE>
90
<PAGE> 98
FORM OF CONSENT TO PLEDGE
To: First Mississippi Corporation
The undersigned holds or intends to purchase a debenture in the
aggregate principal amount of $_____________________ (the "Debenture") issued
by First Mississippi Corporation (the "Company"). The Debenture is one of a
series of debentures issued the Company entitled 1994-1 Series Convertible
Subordinated Debentures (the "Debentures"). In accordance with the provisions
of Section 10.06 of the Indenture dated as of November 14, 1994 governing the
terms of the Debentures, the undersigned hereby requests the Company's consent
to a proposed pledge of the Debenture to:
__________________________________________________________________
__________________________________________________________________
for the purpose of borrowing money to purchase the Debenture.
Please signify the Company's consent to the proposed pledge by
signing in the space below and returning an executed counterpart to the
undersigned.
Dated:___________________ _________________________________
Signature of Debentureholder
_________________________________
Printed Name of Debentureholder
* * * * * *
First Mississippi Corporation hereby consents to the
above-described pledge of the Debenture.
FIRST MISSISSIPPI CORPORATION
By: ____________________________
EXHIBIT A
<PAGE> 1
EXHIBIT 5.1
[FIRST MISSISSIPPI CORPORATION LETTERHEAD]
February 20, 1995
Board of Directors
FIRST MISSISSIPPI CORPORATION
700 North Street
Jackson, Mississippi 39202-3095
Gentlemen:
This opinion is given in connection with the Registration Statement on Form S-8
(the "Registration Statement") which FIRST MISSISSIPPI CORPORATION (the
"Company") is filing with the Securities and Exchange Commission to register
$21,312.50 in principal amount of its 1994-1 Series Convertible Subordinated
Debentures (the "1994-1 Series Debentures"), for sale to outside directors,
1,000 shares of its 1994-1 Series Convertible Preferred Stock (the "1994-1
Series Stock") issuable upon conversion of the 1994-1 Series Debentures, and
1,000 shares (subject to certain adjustments) of its Common Stock (the "Common
Stock") issuable upon conversion of the 1994-1 Series Stock, all pursuant to
the Company's 1988 Long-Term Incentive Plan (the "Plan").
As General Counsel of the Company, I am familiar with the Company's Articles of
Incorporation and By-Laws; the Plan; the Registration Statement; the actions
taken and resolutions passed by the Board of Directors relative to the 1994-1
Series Debentures and the 1994-1 Series Stock and the taking of certain other
actions in connection with the offering and sale of the 1994-1 Series
Debentures, the 1994-1 Series Stock and the Common Stock issuable pursuant to
the Plan; the Indenture, dated as of November 14, 1994, between the Company and
Deposit Guaranty National Bank, as Trustee, relating to the 1994-1 Series
Debentures; the form of 1994-1 Series Debentures; the Debenture Options, and
such other matters and documents deemed necessary for the purpose of rendering
this opinion.
On the basis of the foregoing, I am of the opinion that:
(1) the 1994-1 Series Debentures have been duly authorized and,
when issued and paid for in accordance with the terms of the
Plan, the Indenture and the Debenture Options, will be validly
issued and binding obligations of the Company;
<PAGE> 2
(2) the shares of 1994-1 Series Stock issuable upon conversion of
the 1994-1 Series Debentures will, when so issued in
accordance with the Plan, the Indenture and the resolutions
passed by the Company's Board of Directors, be legally issued,
fully paid and non-assessable.
(3) the shares of Common Stock issuable upon conversion of the
1994-1 Series Stock, will, when so issued in accordance with
the Plan, the Indenture and the resolutions passed by the
Company's Board of Directors, be legally issued, fully paid
and non-assessable.
This opinion is subject to the following qualifications:
(a) Rights and remedies set forth in the Indenture and the 1994-1
Series Debentures are subject to applicable bankruptcy,
insolvency, moratorium, reorganization and other laws now or
hereafter in effect affecting the enforcement of creditors'
rights generally, and
(b) No opinion is expressed as to the availability of any remedy
or remedies that may be sought with respect to the specific
enforcement of any provision of the Indenture or the 1994-1
Series Debentures.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me and to my opinion in the
Registration Statement.
Very truly yours,
FIRST MISSISSIPPI CORPORATION
/s/J. Steve Chustz
J. Steve Chustz
General Counsel
<PAGE> 1
EXHIBIT 24.2
AUDITORS' CONSENT
The Board of Directors
First Mississippi Corporation:
We consent to the use of our reports dated September 9, 1994, on the
consolidated financial statements and financial statement schedules of First
Mississippi Corporation and consolidated subsidiaries as of June 30, 1994 and
1993 and for each of the years in the three-year period ended June 30, 1994,
incorporated herein by reference and to the reference to our firm under the
heading "Experts" in the Registration Statement.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Jackson, Mississippi
February 21,
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
_______________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ______________
DEPOSIT GUARANTY NATIONAL BANK
(Exact name of trustee as specified in its charter)
N/A 64-0147200
- ----------------------------------------------- ---------------------
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
Post Office Box 1200 39201
210 East Capitol Street ---------------------
Jackson, Mississippi (ZIP Code)
- -----------------------------------------------
(Address of principal executive offices)
Arlen L. McDonald
210 East Capitol Street
Jackson, MS 39201
(601) 354-8497
--------------------------------------------------
(Name, Address and telephone number of agent for service)
FIRST MISSISSIPPI CORPORATION
----------------------------------------
(Exact name of obligor as specified in its charter)
Mississippi 65-0354930
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification no.)
Post Office Box 1249
700 North Street
Jackson, Mississippi 39215-1249
- ----------------------------------------- ------------------
(Address of principal executive offices) (ZIP Code)
___________________________________
Convertible Subordinated Debentures
1994-1 Series Due November 13, 2004
(Title of indenture securities)
Page 1 of 5 sequentially numbered pages.
1
<PAGE> 2
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank Atlanta, GA
(6th District)
Federal Deposit Insurance Washington, D.C.
Corporation
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
3. Voting Securities of the Trustee.
Not applicable pursuant to Instruction B.
4. Trusteeships Under Other Indentures.
Not applicable pursuant to Instruction B.
5. Interlocking Directorates and Similar Relationships with the
Obligor or Underwriters.
Not applicable pursuant to Instruction B.
6. Voting Securities of the Trustee Owned by the Obligor or its
Officials.
Not applicable pursuant to Instruction B.
2
<PAGE> 3
7. Voting Securities of the Trustee Owned by Underwriters or
their Officials.
Not applicable pursuant to Instruction B.
8. Securities of the Obligor Owned or Held by the Trustee.
Not applicable pursuant to Instruction B.
9. Securities of Underwriters Owned or Held by the Trustee.
Not applicable pursuant to Instruction B.
10. Ownership or Holdings by the Trustee of Voting Securities of
Certain Affiliates or Security Holders of the Obligor.
Not applicable pursuant to Instruction B.
11. Ownership or Holdings by the Trustee of any Securities of a
Person Owning 50 Percent or More of the Voting Securities of
the Obligor.
Not applicable pursuant to Instruction B.
12. Indebtedness of the Obligor to the Trustee.
Not applicable pursuant to Instruction B.
13. Defaults by the Obligor.
(a) State whether there is or has been a default with
respect to the securities under this indenture. Explain
the nature of any such default.
There have been no such defaults.
(b) If the trustee is a trustee under another indenture
under which' any other securities, or certificates of
interest or participation in any other securities, of th
obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture,
state whether there has been a default under any such
indenture or series, identify the indenture or series
affected, and explain the nature of any such default.
There have been no such defaults.
3
<PAGE> 4
14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe
each such affiliation.
Not applicable pursuant to Instruction B.
15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
Not applicable.
16. List of Exhibits.
Exhibit 1 - Articles of Association of Deposit Guaranty
National Bank, as amended to date; incorporated
herein by reference to Exhibit 1 of the Form T-1
of Deposit Guaranty National Bank, Registration No
22-18833.
Exhibit 2 - Certificate of Authority to Commence Business;
incorporated herein by reference to Exhibit
2 of the Form T-1 of Deposit Guaranty National
Bank, Registration No. 22-17661.
Exhibit 3 - Authorization to Exercise Corporate Trust Powers;
incorporated hereinby reference to Exhibit 3 of th
Form T-1 of Deposit Guaranty National Bank,
Registration No. 22-17661.
Exhibit 4 - Bylaws of Deposit Guaranty National Bank, as
amended to date; incorporated herein by reference
to Exhibit 4 of the Form T-1 of Deposit Guaranty
National Bank Registration No. 22-21588.
Exhibit 5 - Consent of Deposit Guaranty National Bank required
by Section 321(b) of the Act; incorporated herein
by reference to Exhibit 8 of the Form T-1 of
Deposit Guaranty National Bank, Registration No.
22-17661.
Exhibit 6 - Report of Condition of Deposit Guaranty National
Bank as of the close of business on December 31,
1994, published pursuant to law or the requirement
of its supervising or examining authority.
4
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Deposit Guaranty National Bank, a banking association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Jackson, and State of
Mississippi, on the 21st day of February, 1995.
DEPOSIT GUARANTY NATIONAL BANK
By:/s/ W. Murray Pate
________________________
W. Murray Pate,
Executive Vice President
5
<PAGE> 6
Call Date: 12/31/94 ST-BK:28-0900 FFIEC 032
Page RC-1
EXHIBIT 6
Legal Title of Bank: DEPOSIT GUARANTY NATIONAL
Address: 210 EAST CAPITOL STREET
City, State Zip: JACKSON, MS 39205
FDIC Certificate No.: 09784
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC -- Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
---------------------------- -------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1) 0081 252,860 1.a.
b. Interest-bearing balances (2) 0071 125,348 1.b.
2. Securities:
a. Held-to-maturity securities
(from Schedule RC-B, column A) 1754 953,970 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D) 1773 9,105 2.b.
3. Federal funds sold and securities purchased under
agreements to resell:
a. Federal funds sold 0276 181,795 3.a.
b. Securities purchased under agreements to resell 0277 0 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C) RCON 2122 2,386,698 4.a.
b. LESS: Allowance for loan and
lease losses RCON 3123 39,688 4.b.
c. LESS: Allocated transfer risk
reserve RCON 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve
(item 4.a. minus 4.b. and 4.c.) 2125 2,347,010 4.d.
5. Assets held in trading accounts (from Schedule RC-D) 3545 3,677 5.
6. Premises and fixed assets (including capitalized leases) 2145 81,375 6.
7. Other real estate owned (from Schedule RC-M) 2150 3,466 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 0 8.
9. Customers' liability to this bank on acceptances
outstanding 2155 775 9.
10.Intangible assets (from Schedule RC-M) 2143 33,762 10.
11.Other assets (from Schedule RC-F) 2160 78,342 11.
12.Total assets (sum of items 1 through 11) 2170 2,071,485 12.
</TABLE>
___________________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 7
Call Date: 12/31/94 ST-BK:28-0900 FFIEC 032
Page RC-2
Legal Title of Bank: DEPOSIT GUARANTY NATIONAL
Address: 210 EAST CAPITOL STREET
City, State Zip: JACKSON, MS 39205
FDIC Certificate No.: 09784
Schedule RC -- Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
-------------------------------
<S> <C> <C> <C>
LIABILITIES
13.Deposits:
a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E) 2200 3,219,128 13.a.
(1) Noninterest-bearing (1 RCON 6631 748,844 13.a.(1)
(2) Interest-bearing RCON 6636 2,470,284 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and 18Fs
(1) Noninterest-bearing
(2) Interest-bearing
14.Federal funds purchased and securities sold under
agreements to repurchase:
a. Federal funds purchased 0278 141,745 14.a.
b. Securities sold under agreements to repurchase 0279 322,711 14.b.
15.a. Demand notes issued to the U.S. Treasury 2840 0 15.a.
b. Trading liabilities 3548 50 15.b.
16.Other borrowed money:
a. With original maturity of one year or less 2332 10,037 16.a.
b. With original maturity of more than one year 2333 10,264 16.b.
17.Mortgage indebtedness and obligations under
capitalized leases 2910 0 17.
18.Bank's liability on acceptances executed and outstanding 2920 775 18.
19.Subordinated notes and debentures 3200 0 19.
20.Other liabilities (from Schedule RC-G) 2930 31,169 20.
21.Total liabilities (sum of items 13 through 20) 2948 3,735,879 21.
22.Limited-life preferred stock and related surplus 3282 0 22.
EQUITY CAPITAL
23.Perpetual preferred stock and related surplus 3838 0 23.
24.Common stock 3230 16,126 24.
25.Surplus (exclude all surplus related to preferred stock) 3839 158,865 25.
26.a. Undivided profits and capital reserves 3632 159,308 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities 8434 1,307 26.b.
27.Cumulative foreign currency translation adjustments
28.Total equity capital (sum of items 23 through 27) 3210 335,606 28.
29.Total liabilities, limited-life preferred stock, and
equity capital (sum of items 21, 22, and 28) 3300 4,071,485 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate on the right the number of the statement
below that best describes the most comprehensive
level of auditing work performed for the bank by
independent external auditors as of any date Number
during 1993 RCON 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank.
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately).
<PAGE> 8
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority).
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority).
5 = Review of the bank's financial statements by external auditors.
6 = Compilation of the bank's financial statements by external auditors.
7 = Other audit procedures (excluding tax preparation work).
8 = No external audit work.
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
